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£0e  f)orn6ooft  <?>*xit* 

Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.    The 
special  features  of  these  books  are  as  follows: 

1  @  succinct  statement  of  feaoing  jmncipfee  in  fifacfo 
fetter  %e.  #  , 

2.  (ft  more  ertenoeo  commentary  efucioatmg  t0e  principles. 

3.  (Note  6  ano  authorities. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 

$3.75  per  Dofume,  incfuoing  oefitjerg. 


1. 

2. 

3- 

4 

5- 
6. 

7- 
8. 

9- 
o. 
1 . 
2. 

3- 

•; 

6. 

:• 

9 

:o 
2  I 

:  2 

*5 


Norton  on  Bills  and  Notes.      (3d  Edition. ) 
Clark's   Criminal  Law.      (2d  Edit  on.) 
Sktpman's  Common- Law  Pleading-       (2d  Edition.) 
Clark  on    Contracts. 

Black's   Constitutional  Law.       (2d  Edition.) 
Fetter  on  Equity. 
Clark  on    Criminal   Procedure. 
my  on  Sates, 
's   International  Law. 
ird  on    Torts.      (2  vols.) 
;•  on  Interpretation  of  Laws. 
Ha  e  on   Bailments  and   Carriers. 
Smith's  Elementary  Law. 
Ha  e  on   Dan: 

ns  on  Real  Proper! v. 
Hale  on    Torts. 

\ny  on  Persons  and  Domestic  Relations. 
on   Executors  and  Administrators. 
Clark  on   Corpi  rations. 
George  on    Partnership. 

■man  on  Equity   Pleading. 
.!/,  /.  n   Evidence, 

'ice. 
es  on  Admiralty. 
.-    Equity. 


In  preparation:      II  a  .        oks  of  the  law  on   other  subjects 
to  be  announced  later. 


rfoufifisflefc  ano  for  eaf'c  6g 

met  (puBfteging  Co.,  git.  (pauf,  (Minn. 


E80.19 


HANDBOOK 


OF 


EQUITY  JURISPRUDENCE 


BY 

NORMAN  FETTER 


St.  Paul,  Minn. 

WEST  PUBLISHING   CO. 

1895 


COPTKIGHT,  1895, 
BY 

WEST  PUBLISHING  COMPANY. 


PREFACE. 


The  system  of  equity  jurisprudence,  created  by  the  English 
chancellors,  and  developed  by  English  and  American  courts  of 
equity,  will  always  be  a  fascinating  subject  of  study  for  the  lawyer. 
It  has  its  roots  in  social  conditions  which  have  long  since  passed 
away, — when  the  clergy  were  supreme  in  the  administration  of  sec- 
ular as  well  as  of  spiritual  affairs.  Down  to  the  time  of  the  Reforma- 
tion, one  hundred  and  sixty  prelates,  in  aD  almost  unbroken  succes- 
sion, were  elevated  to  the  office  of  lord  high  chancellor  of  Eng- 
land. In  influence  and  authority,  political  as  well  as  judicial,  they 
stood  without  a  rival,  save  the  king.  Enjoying  an  almost  complete 
immunity  from  secular  control,  and  intrusted  even  with  the  nomina- 
tion of  the  common-law  judges,  it  is  not  strange  that  these  dignified 
ecclesiastics  should  have  succeeded  in  establishing  a  court,  consti- 
tuted in  effect  of  one  man,  the  lord  chancellor,  having  for  its  ob- 
ject the  correction  of  the  common  law,  though  at  the  very  time  there 
existed  a  legislature,  consisting  of  the  king,  lords,  and  commons, 
charged  with  the  duty  of  amending  the  law,  and  securing  its  due  ad- 
ministration.1 

The  personal  conscience  of  the  chancellor,  and  the  principles  of 
morality  as  declared  in  the  Bible,  supplemented  by  the  rules  of  the 
Roman  law,  constituted  the  primitive  equity  jurisprudence  as  ad- 
ministered by  the  ecclesiastical  chancellors.  ~So  reports  of  their  de- 
cisions ever  existed;  and  but  few  of  them — and  these  with  perhaps 
not  altogether  friendly  motives — are  preserved  in  the  Year  Books. 
One  of  them  is  here  quoted  to  show  the  wide  gulf  which  separates 
the  modes  of  thought  and  reasoning  of  the  ecclesiastical  chancellors 
from  those  of  their  modern  successors.  Lord  Chancellor,  Archbishop 
Morton,  is  reported  to  have  delivered  himself  as  follows  concern 
ing  an  executor  who  had  wasted  the  assets  of  an  estate:  "I  know 
that  the  law  is  or  ought  to  be  according  to  the  law  of  God;  and  the 

1 1  Spence,  Eq.  355,  356. 

(iii)  eq.juk. 


72967? 


PKEFAl  E 


law  of  God  is  thai  an  executor  who  is  evilly  disposed  shall  not  expend 
all  the  goods;  and  this  1  know  that  if  he  do  so,  and  do  not  make 
amends  if  he  can,  he  will  be  damned  in  hell."2 

With  the  advenl   of  the  lay  chancellors,  learned  in  the  common 
law.  and  fully  alive  to  the  fact  that  uncertainty  of  the  law  is  the 
obstacle  to  the  due  administration  of  justice,  there  was  de- 
veloped a  practically  aew  system  of  equity  jurisprudence,  with  prin- 
ciples  ;is  axed  and  ;is  definite  as  those  of  the  common  law  itself. 

state  clearly  those  principles  as  they  now  obtain,  with  their 
proper  qualifications  and  limitations,  to  sketch  their  developement 
whenever  accessary  to  their  comprehension,  to  illustrate  their  ap- 
plication by  brief  statements  of  decided  cases,  and  to  clothe  the 
whole  in  a  garb  which  will  attract,  rather  than  repel,  the  student, 
have  been  the  objects  in  view  during  the  composition  of  this  book. 
That  the  performance  falls  far  short  of  these  ideals  is  apparent  from 
even  a  cursory  examination  of  the  following  pages. 

In  the  preparation  of  the  book,  the  researches  and  labors  of  others 
have  been  freely  drawn  upon.  Among  the  books  that  have  been  spe- 
cially helpful  arc  Smith's  Principles  of  Equity,  Snell's  Principles  of 
Equity,  Baynes'  Outlines  of  Equity,  and  Underbill's  Concise  Guide  to 
Equity, — all  English  works  designed  principally  for  students'  use, 
Cerley'a  History  of  Equity,  an  historical  sketch  published  in  England 
in  L890,  and  Spence's  Equity,  have  been  my  chief  guides  as  to  historical 
matters  touching  the  introduction  and  development  of  the  leading 
principles.  The  American  works  of  Story,  Pomeroy,  and  Beach 
have  been  freely  consulted;  and  so  have  the  standard  text-books  on 
Bpecial  topics,  such  as  Lewin  and  Perry  on  Trusts,  Kerr  and  High 
on  Injunctions,  Jones  on  Mortgages,  and  Kerr  on  Fraud  and  Mis- 
take. N.F. 
Paul,  Jan.  18.  1885. 

.  klq.  57b;  Year  Books,  4  Hen.  VII.  fol.  5. 


TABLE   OF   CONTENTS. 


CHAPTER  I. 


NATURE  AND  DEFINITION  OF  EQUITY. 

Section  Page 

1.    Equity    Defined 1-7 


CHAPTER  II. 

PRINCIPLES  DEFINING  AND  LIMITING  JURISDICTION. 

2.  No  Jurisdiction  over  Crimes 8-10 

3.  No  Jurisdiction  Where  the  Legal  Remedy  is  Adequate 10-11 

4.  Jurisdiction  not  Divested  by  Enlargement  of  Legal  Remedy. .  11-13 

5.  Jurisdiction  Retained  to  Award  Complete  Relief 13-15 

6.  Assumption  of  Jurisdiction  to  Prevent  Multiplicity  of  Suits. .  15-18 

CHAPTER   III. 

THE   MAXIMS   OF   EQUITY. 

7.  Definition  and  Classification  of  Maxims 19-20 

8.  Enabling  Maxims — No  Right  without  a  Remedy 20-23 

9.  Equity  Regards  Substance  Rather  than  Form 23-25 

10.  Equity  Looks  on  That  as  Done  which  Ought  to  be  Done. .  25-27 

11.  Equity  Imputes  an  Intention  to  Fulfill  an  Obligation. .. .  27-28 

12.  Equity  Acts  in  Personam,  and  not  in  Rem 28-31 

13.  Equity  Acts  Specifically,  and  not  by  Way  of  Compensa- 

tion   31 

14.  Equality  is  Equity 32-33 

15.  Restrictive  Maxims— Equity  Follows  the  Law 33-34 

16.  Where  Equities  are  Equal,  the  Law  will  Prevail 35-36 

17.  Where  There  are  Equal  Equities,  the  First  in  Order  of 

Time  shall  Prevail 36 

18.  He  Who  Seeks  Equity  must  do  Equity 36-38 

19.  He   Who    Comes    into    Equity    must    Come   with    Clean 

Hands    38-42 

20.  Equity  Aids  the  Vigilant,  not  Those  Who   Slumber  on 

Their    Rights 42-44 

EQ.JTJR.  (V) 


\i  TABLE    OF    CONTENTS. 


CHAPTER   IV. 

THE    DOCTRINES    OP    EQUITY— ESTOPPEL,    ELECTION,    SATISFAC- 
TION. PERFORMANCE,  AND  CONVERSION. 

Pag« 

21.    Equltab  pel 45-47 

Baa  ntial  Elements 47-50 

Es    ppel 50 

24.  50-52 

Conditions  Requiring  Election 52-54 

•_■•;.  Election  between  Dower  aud  Testamentary  Gift 55 

27,  Mode  of  Election 55-50 

Ascertainment  of  Values 50 

".1.  Election  by  Persons  under  Disability 57 

ion 58 

;ion    58-50 

;:i  Admissibility  of  Evidence  as  to  Intention 59 

Classification   GO 

-     isfaction  of  Debt  by  Legacy,  etc 60-61 

38.  Double  Provisions  for  Child  by  Parent  or  Person  in  Loco 

Parentis    61 

Ademption    61-63 

40.  Person  in  Loco  Parentis 63-64 

41.  Presumption  in  Favor  of  Ademption 64-65 

Covenant  to  Make  Settlement  Followed  by  Testamentary 

Provision   65-60 

43.    Performance   66-67 

4i  slon    67-68 

4.".  Words  Sufficient  to  Work  a  Conversion 68-60 

40.  Time  of  Conversion 60-71 

47.  Effect  of  Conversion 71-75 

Total   or   Partial   Failure   of   Purposes   for   which    Con- 

n   is  Directed 76-78 

Double  Conversion 78 

51.  .version    79 


CHAPTER  V. 

DO<  TRINEfi  OP  EQUITY  (Continued)— CONFLICTING  RIGHTS  OF 
PURCHASERS,  ASSIGNEES.  ETC. 


52.     Notice   

ition 


80-31 
81 


54. 


Actual    Notice 81-S3- 


TABLE    OF    CONTENTS. 


SectioD 


Page 

55.  Constructive    Notice 83-S4 

56.  Notice  of  Fact  is  Notice  of  Cause 84-85 

57.  Possession  as  Notice 85-80 

58.  Recitals  in  Title  Papers 87-88 

59.  Notice   to   Ageut 8S-90 

60.  Notice  by  Record 90-92 

61.  Lis    Pendens 93-95 

62.  Bona  Fide  Purchasers 95-98 

63-67.    Priorities— Unequal    Equities 98-103 

68-70.  Equal    Equities 103-106 


CHAPTER  VI. 

DOCTRINES  OF  EQUITY  (Continued)— PENALTIES  AND  FORFEITURES. 

71.  Penalties  and  Forfeitures 107-108 

72.  Penalty  or  Liquidated  Damages 10S-111 

73.  Statutory    Penalties Ill 

74.  Enforcing  Forfeiture 112 

CHAPTER  VII. 

GROUNDS  FOR  EQUITABLE   RELIEF. 

75.  Accident    ' 113-114 

76.  When  Relief  will  be  Granted 114-117 

77.  Mistake   117-118 

78.  Classification    118 

79.  Mistake  of  Law 118-121 

80.  Mistake  of  Fact 122 

81.  Fundamental    Mistake 122-125 

82.  Unilateral  Mistake  as  to  Subject-Matter 125-127 

83.  Mistake  of  Expression 127-130 

84.  Fraud    130-131 

85.  Classification    132-133 

86.  Actual   Fraud 133 

87.  Wrongful  Acts  or  Misrepresentations 133-137 

88.  Wrongful   Omissions 137-139 

89.  Rights  and  Duties  of  Defrauded  Party 139-140 

90.  Inequitable   or   Unconscientious  Transactions— Presump- 

tion of  Fraud  from  Nature  of  Transaction 140-142 

91.  Fraud  Presumed  from  Position  or  Condition  of  Par- 

ties    142-143 


TABLE   OF   CONTENTS. 

Page 
Contracts   with   Persons  under  Mental  Disability 

or    Duress 143-145 

Contracts    between    Persons   in    Fiduciary    Rela- 
tions     145-151 

94  Gifts  between  Persons  in  Fiduciary  Relations 151-153 

95.  Frauds  on  TMrd  Persons 153-154 

Q&  Composition   With   Creditors 154-155 

97,  Fraudulent  Conveyances 155 

Essential  Elements  of  Fraudulent  Conveyance 155 

The   Creditor 156-157 

LOO.  Intent  to  Defraud 157-158 

mi.  Transfer  of  Property 159-160 

102.  Frauds  on  Marital  Rights 160-161 

Ki3.  Frauds    OD    Powers 161-102 


CHAPTER   VIII. 

PROPERTY  IN  EQUITY— TRUSTS. 

in}.     Definition  and   History  of  Trusts 103-168 

105.    Classification  of  Trusts 108-169 

IOC     Express   Private   Trusts 109 

107.  Parties    109 

ins.  The    Settlor 109-170 

109.  The  Trustee 170-171 

110.  Cestui  Que  Trust 171-172 

111.  What  Property  Subject  to  Trust 172 

112.  Creation   of  Trust 172-174 

1 13.  Words  Essential  to  Create  Trust 174-175 

111.                 Consideration    to    Support    Trust— Voluntary    Settle- 
ments    175-179 

115.  The  Object  Proposed  by  the  Trust 179-1S2 

Lft  Interpretation  of  Trusts 182-184 

120.  Nature  of  Cestui  Que  Trust's  Estate 184 

1-1.  Passive    Trusts 184-185 

122.  Active  or  Special  Trusts 185-1SG 

123.  Public  or  Charitable  Trusts 180-190 

1LM.     Resulting   Trusts 191 

125.         Classification   191 

Parting  with  Legal  and  Retaining  Equitable  Interest 191-194 

127.  Purchase  iu  Name  of  Third  Person 194 

Purchase  in  Name  of  Stranger 194-197 

129-                Purchase  in  Name  of  Wife,  Child,  or  Near  Relative.  .197-198 
130.    Constructive   Trusts 198-200 


TABLE    OF    CONTENTS.  IX 

Section  Pai?e 

131.  Duties  and  Liabilities  of  Trustees 200 

132.  Getting  in  Outstanding  Trust  Property 200-201 

133-134.  Custody  and  Care  of  Trust  Property 201-203 

135.  Investments   203-204 

136.  Liability  for  Acts  of  Cotrustee 204-20(3 

137.  Compensation    200-207 

138.  Remedies  of  Cestui  Que  Trust— Following  Trust  Estate 207-209 

139.  Personal  Remedies 209-210 

140.  Removal  of  Trustee 210-211 

CHAPTER  IX. 

PROPERTY  IN  EQUITY  (Continued)— MORTGAGES,   LIENS,  AND 
ASSIGNMENTS. 

141.  Real-Estate    Mortgages 212-210 

142.  Absolute  Deed  as  Mortgage 216-217 

143.  Conditional  Sale  or  Mortgage 217-218 

144.  Assignment  of  Mortgage 218-219 

145.  Transfer  of  Mortgaged  Land 219-220 

146-147.  Foreclosure  of  Mortgage 220-223 

148-149.  Redemption    223-225 

150-151.    Mortgages  and  Pledges  of  Personalty 226-227 

152.  Equitable   Liens 227-228 

153.  Equitable   Mortgages 228-230 

154.  Liens  Based  on  Considerations  of  Justice 230-231 

155.  Vendor's   Lien 231-236 

156.  Vendee's   Lien 236 

157.  Charges  of  Debts  and  Legacies 236-238 

158-159.    Assignments    23S-239 

160.  What  Assignments  Now  Recognized  at  Law 239-241 

161-162.  Equitable  Assignments 241-245 

163.  Assignment  Subject  to  Equities 245-216 

CHAPTER   X. 

EQUITABLE     REMEDIES— ACCOUNTING— CONTRIBUTION— EXONER- 
ATION—SUBROGATION  AND  MARSHALING. 

104.    Accounting    247-249 

165-167.  Application  of  Payments 249-252 

168.  Contribution 252-253 

169.  Exoneration    253-254 

170.  Subrogation    254-256 

171.  Marshaling 256-258 


X  TABLE    OF    CONTENTS. 

CHAPTER   XI. 
EQUITABLE  REMEDIES  (Continued)— PARTITION  AND  BOUNDARIES. 

Hon  PaKe 

172.    Partition  259-200 

i:::.  Who  Entitled  to  Partition 260-202 

171.  What  is  Subject  to  Partition 262-2G3 

17."..    Settlement  of  Boundaries 203-264 

CHAPTER   XII. 
EQUITABLE   REMEDIES  (Continued)— SPECIFIC  PERFORMANCE. 

176.  Definition  and  Contracts  Enforceable 2G5 

177.  Inadequacy  of  Damages 2G5-2G7 

Contracts  Relating  to  Personal  Acts 2G7-270 

1 7'.>.    Grounds  for  Refusing  Relief 270 

ISO.  Defenses  Having  Same  Effect  at  La-v  and  in  Equity 271-272 

181.  Defenses  Confined  to  Specific  Performance 272-275 

Defenses  Producing   Different  Result  than  at  Common 
Law    275-279 

smtute  of  Frauds  as  a  Defense 2S0-2S3 

184.  Specific  Performance  with  a  Variation 2S3-287 

CHAPTER   XIII. 

EQUITABLE  REMEDIES  (Continued)— INJUNCTION. 

185.  Definition    288-2S9 

186.  Jurisdictional  Principles 289-290 

1 87.  Classes  of  Cases  Where  Remedy  may  be  Used 290-291 

1 B8.  Injunctions  against  Proceedings  at  Law 291-294 

180.  Injunctions  Relating  to  Contracts 294-29G 

190.    Injunctions  Relating  to  Torts 297 

181.  General  Principles  Governing  Exercise  of  Jurisdiction.  ..297-299 

192.  Classes  of  Torts  Enjoined 299-311 

198.     Injunctions  Relating  to  Trusts  and  Equitable  Rights 312-313 

CHAPTER  XIV. 
REFORMATION,  CANCELLATION,  AND  QUIETING  TITLE. 

194    Reformation   ..314-315 

196.    Cancellation    :;i.">-31G 

106.    Removing  Clond  on  Title 316-317 


TABLE    OF    CONTENTS.  xi 


CHAPTER  XV. 

ANCILLARY    REMEDIES. 

Section  Page 

197.  Discovery   318-322 

198.  Bills  to  Perpetuate  Testimony 322-323 

199.  Examination  of  Witnesses  de  Bene  Esse 324 

200.  Ne  Exeat 325 

201.  Interpleader  320-327 

202.  Essential  Elements 327-329 

203.  Receivers   330-331 

204.  In  What  Cases  Receivers  will  be  Appointed 331-335 

t 


HANDBOOK  OF  EQUITY  JURISPRUDENCE. 


CHAPTER  I. 

NATURE  AND  DEFINITION  OP  EQUITY. 

EQUITY    DEFINED. 

1.  As  understood  in  English,  and  American  jurispru- 
dence, equity  may  be  denned  to  be  that  portion  of  natural 
justice,  susceptible  of  judicial  enforcement,  "which  was 
either  not  recognized  at  all  by  the  common  law,  or  only 
inadequately  enforced  by  reason  of  its  cramped  procedure.' 

In  its  largest  sense,  equity  is  synonymous  with  natural  justice. 
But  it  was  early  found  that  there  are  many  cases  against  natural 
justice  which  cannot  be  conveniently  corrected  by  any  human  court, 

i  See  Maitland,  Justice  &  Police,  38,  39;  Snell,  Eq.  p.  2;  Haynes,  Eq.  p.  7. 
Pouieroy  (Eq.  Jur.  §  G7)  defines  equity  as  "those  doctrines  and  rules,  primary 
and  remedial  rights  and  remedies,  which  the  common  law,  by  reason  of  its 
fixed  methods  and  remedial  system,  was  either  unable  or  inadequate,  in  the 
regular  course  of  its  development,  to  establish,  enforce,  and  confer,  and  which 
it  therefore  either  tacitly  omitted  or  openly  rejected."  Bigelow  (Eq.  p.  9) 
says:  "The  jurisdiction  of  courts  of  chancery  now  extends  to  all  civil  cases, 
proper  in  good  conscience  and  honesty  for  relief  or  aid,  as  to  which  the  pro- 
cedure of  the  common-law  courts  is  unsuited  to  give  an  adequate  remedy,  or 
as  to  which  the  common-law  courts,  when  able  to  extend  their  aid,  have  re- 
fused to  do  so."  Judge  Phelps,  of  Baltimore,  Md.,  defines  equity  as  follows: 
"By  juridical  equity  is  meant  a  systematic  appeal  for  relief  from  a  cramped 
administration  of  defective  laws  to  the  disciplined  conscience  of  a  competent 
magistrate,  applying  to  the  special  circumstances  of  defined  and  limited  classes 
of  civil  cases  the  principles  of  natural  justice,  controlled  in  a  measure  as  well 
by  considerations  of  public  policy  as  by  established  precedent,  and  by  positive 
provisions  of  law."  Phelps,  Jurid.  Eq.  p.  192.  Other  winters,  following  the 
lead  of  Justice  Story,  have  defined  equity  by  reference  to  the  court  in  which 
it  was  anciently  administered.  Thus,  Bispham  (Eq.  p.  1)  states  that  equity 
kq,jur. — 1 


NATURE    AND    DEFINITION    OF    EQUITY.  [Ch.    1 

and  which  must  be  left  to  the  conscience  )f  the  party  offending. 
11, arte   of  DO   civilized   country  can  or   do  undertake  to  en- 

I  he  various  obligations  of  gratitude,  kindness,  or  charity; 2  nor 
will  they  exen  Lse  their  powers  for  the  enforcement  of  right  or  pre- 
tention of  wrong  in  the  abstract.3  Even  positive  contract  obliga- 
tions barred  by  the  statute  of  limitations,  and  promises  not  founded 
,.ii  a  valid  consideration,  are  not  enforceable  either  at  law  or  in 
equity/ 

tin,  a  large  portion  of  natural  equity  or  justice  is  enforced  in 
the  courts  of  law,  and  is  excluded  from  the  domain  of  equity  juris- 
prudence, technically  so  called.  It  is  no  exaggeration  to  say  that 
the  principles  of  Hie  common  law  are  or  were  originally  grounded  on 
reason  and  justice.5  Certainly,  in  applying  those  principles  to  new 
i  onditions  of  society  in  this  country,  courts  of  law  have  been  avow- 
edly controlled  by  considerations  based  on  the  welfare  of  the  com- 
munity,  and  by  reasons  founded  on  the  actaal  facts  of  life.  They 
have  therefore  enforced  only  such  portions  of  the  common  law  of 
England  as  are  suited  to  our  changed  conditions;8  and  perhaps  it 

is  that  system  of  justice  which  was  administered  by  the  high  court  of  chan- 
ln  England,  in  the  exercise  of  its  extraordinary  jurisdiction."    See,  also. 
Story.  I-'l-  -Tur.  (13th  Ed.)  g  25. 

R( .  a  v  city  of  Watertown,  10  Wall.  121;  Green  v.  Lyon,  21  Wkly.  Rep.  830. 
odrich  v.  Monro.  2  Minn.  Gl  (Gil.  49). 

stor  v.  Ulman,  64  Md.  526,  3  Atl.  113;    Dunphy  v.  Ryan,  116  U.  S.  498, 

6  Sup   Ct   iv,'>  i  statute  of  frauds  is  as  binding  on  courts  of  equity  as  on  courts 

of  law.  except  when  it  is  being  used  as  an  instrument  of  fraud).    See,  post 

U  t"  statute  of  limitations. 

■  Thus,  Blackstone  says:    "The  [common]  law  is  the  perfection  of  reason; 

it  always  intends  to  conform  thereto;    and  what  is  not  reason  is  not  law\" 

i  to  say:     "Not  that  the  particular  reason  of  every  rule  in  the 

law  can  at  this  distance  of  time  be  always  precisely  assigned;   but  it  Is  suffi- 

iiat  there  be  nothing  in  the  rule  flatly  contradictory  to  reason,  and  then 

v  will  presume  it  to  be  well  founded."    1  Bl.  Comm.  p.  70.    In  Hurtado 

110  U.  S.  530,  4  Sup.  Ct.  Ill,  292,  Justice  Mathews  says:     "The 

iity  and  capacity  for  growth  and  adaptation  is  the  peculiar  boast  and  ex- 

cellence  of  the  common  law." 

Austin  Abbott,  in  a  paper  read  before  the  American  Bar  Association 

:i  1893,  says  that  American  jurisprudence  "is  not  the  jurispru- 

m  of  commands;    it.  is  the  jurisprudence  of  common  welfare, 

reasoning  upon  the  actual  facts  of  life.    American  juris- 

tually  administered  to-day,  is  the  jurisprudence  of  the  common- 


Ch.    1]  EQUITY    DEFINED.  3 

would  not  be  going  too  far  to  say  that  they  have  also  in  some  re- 
spects created  a  new  American  common  law,  which  is  suited  to  our 
conditions.7 

The  question,  then,  naturally  arises,  why  did  not  courts  of  law 
afford  relief  in  all  cases  judicially  cognizable?  This  is  a  matter  of 
history,  rather  than  of  principle.  Most  of  the  modern  writers  on 
equity  jurisprudence  find  in  the  inflexible,  inelastic,  and  cramped 
procedure  of  the  common-law  courts  the  chief  cause  for  their  in- 
ability to  bring  within  their  jurisdiction  all  cases  requiring  judicial 
interference.8  It  is  true  that  an  action  at  common  law  could  be 
commenced  only  by  virtue  of  the  king's  writ,  issued  out  of  chancery, 
an  office  over  which  the  chancellor  presided;  that,  in  the  course  of 
time,  every  species  of  civil  wrong  cognizable  at  common  law  had  its 
particular  writ;  and  that,  unless  the  wrong  could  be  referred  to 
an  appropriate  writ,  the  party  was  without  a  remedy  at  law.  To 
remedy  this  evil,  parliament,  in  the  reign  of  Edward  I.,  passed  a 
statute  (13  Edw.  I.  St.  1,  c.  24)  having  for  its  object  the  adaptation  of 

wealth.  *  *  •  The  great  mass  of  the  business  of  our  courts  to-day  turns  up- 
on questions  not  wholly  foreclosed  by  the  history  of  the  past.  The  question, 
what  is  the  traditional  law  that  has  come  down  to  us?  is  still  asked;  but  an- 
other question  is  always  open,  viz.  does  our  situation  to-day  suggest  the  wisdom 
of  a  deviation  from  that  traditional  law?  The  keynote  of  this  good  change  was 
struck  when  our  courts  determined  that,  notwithstanding  the  unqualified  adop- 
tion of  the  English  common  law  by  our  constitutions,  they  would  apply  and  en- 
force only  so  much  as  is  suited  to  our  condition.  From  that  time  forward  it  has 
always  been  for  a  court  of  last  resort  a  legitimate  inquiry,  what  rule  on  the 
subject  under  consideration  is  suitable  to  the  condition  of  our  people?  and  a 
legitimate  course  to  disregard  common-law  rules  whenever  unsuitable,  and  to 
considt  the  common  welfare  of  the  people,  as  sound  premises  for  the  decision 
of  any  question  not  foreclosed  by  statutory  authority."  Am.  Law  Rev.  1893, 
pp.  803,  804. 

i  Thus,  by  the  common  law  of  England  only  such  streams  as  are  subject 
to  the  ebb  and  flow  of  the  tide  are  deemed  navigable  waters;  by  the  Amercian 
common  law,  as  announced  by  the  courts,  all  waters  capable  of  being  used  in 
their  natural  state  for  the  purposes  of  commerce  or  trade,  or  even  pleasure, 
are  deemed  navigable. 

s  Haynes,  Eq.  pp.  8-15.  Professor  Pomeroy  ascribes  the  necessity  for  a 
separate  equity  jurisprudence  to  the  "rigid  character,  external  and  internal, 
which  the  common  law  assumed  after  it  began  to  be  embodied  in  judicial 
precedents,  and  to  the  unreasoning  respect  shown  by  the  judges  for  their  de- 
cisions merely  as  precedents."     1  Pom.  Eq.  Jur.  §  16. 


NATURE    AND    DEFINITION    OF    EQUITY.  [Ch.    1 

the  old  forma  of  write  "to  like  cases  requiring  like  remedy,"  but  not 

,  ,|  by  i xisting  writs.     Under  this  statute,  during  the  course 

of  centuries,  the  judges,  by  taking  certain  of  the  old  writs  as  start- 
in-  points,  and  accumulating  successive  variations  on  them,  added 
areas  to  the  common  law,  and  many  of  its  most  famous  ac- 
tiuits.  such  as  assumpsit  and  Mover  and  conversion,  were  developed 
in  this  way. 

It  is  often  alleged  that  the  common-law  judges  obstinately  re- 
fused  to  avail  themselves  of  the  opportunity  afforded  them  by  this 
statute  to  extend  their  jurisdiction  to  all  civil  cases  requiring  judi- 
cial redress.  This  allegation,  however,  ignores  one  of  the  main 
springs  of  human  action, — the  acquisition  of  power  and  its  con- 
comitanl  emoluments;  and  it  also  assumes  that  the  common-law 
courts  were  intended  to  supply  a  remedy  for  the  violation  of  every 
right  recognized  by  the  municipal  law. 

In  the  earlier  history  of  England,  the  compensation  of  the  com- 
mon-law  judges  depended  on  the  fees  paid  into  their  courts  by 
suitors,  and  all  human  experience  is  contradicted  by  the  assumption 
that  they  obstinately  and  perversely  thrust  from  themselves  new 
business  legitimately  falling  within  their  jurisdiction.  That  they 
had  no  such  scruples  is  attested  by  the  facts  that,  by  means  of  ficti- 
tious allegations  in  pleadings,  the  court  of  exchequer  and  the  court 
of  king's  bench  raided  the  jurisdiction  of  the  court  of  common 
pleas;*  and  that,  by  similar  means,  all  three  of  the  common-law 
courts  joined  in  a  raid  on  the  jurisdiction  of  the  court  of  admiralty.10 
The  truth  seeMis  to  he  that  the. common-law  courts  were  never  in- 
tended to  offer  a  remedy  for  every  civil  wrong.     It  is  certain  that, 

•  Thr-  exchequer  bad  jurisdiction  of  civil  cases  only  where  plaintiff  was  a 

•  of  the  king,  and  the  defendant  had  done  a  wrong  or  injury  by  which 

tT  w:is  less  able  to  pay  the  king  his  debt.     Whenever  the  declaration 

racb  an  allegation,  defendant  was  not  permitted  to  deny  its  truth, 

court  was  open  to  all  the  nation  equally.    3  Bl.  Conim.  45,  4G.    The 

'8  bench    assumed  jurisdiction  of  all  civil  cases   on   the  ficti- 

llegatlon  that  defendant  was  an  officer  of  this  court,  or  in  custody  of 

.1  or  prison  keeper.    Id.  42. 

of  admiralty  originally  had  jurisdiction  of  all  matters  occurring 

but  the  courts  of  common  law  would  assume  jurisdiction 

living  contracts  made  on  the  high  seas  whenever  plaintiff  fic- 

4  that  they  were  made  on  land.     3  Bl.  Comm.  107. 


Ch.    1]  EQUITY    DEFINED.  5 

even  in  the  days  of  their  infancy,  their  work  was  supplemented  by 
the  ecclesiastical  courts,  which  exercised  jurisdiction,  not  only  in 
cases  of  marriage  and  testament,  but  also,  down  to  the  time  of 
Edward  L,  in  cases  where  the  faith  of  the  party  was  pledged  and 
broken.  Then,  too,  the  jurisdiction  of  the  common-law  courts  was 
supplemented  by  the  judicial  power  of  the  king  and  his  council. 
The  power  to  personally  decide  disputes  between  their  subjects 
would  probably  have  been  the  last  of  the  prerogatives  of  the  early 
Norman  kings  that  would  ever  have  been  called  in  question.  Not 
only  did  they  decide  causes  without  reference  to  the  courts  at  all, 
but  they  also  entertained  appeals  from  the  decisions  of  these  tri- 
bunals, and  sometimes  they  directly  interfered  with  causes  pending 
therein.11  In  the  course  of  time,  when  foreign  wars  and  domestic 
politics  came  to  occupy  the  attention  of  the  later  Plantagenets,  these 
judicial  functions  were  delegated  to  their  councils, — a  body  of  per- 
manent salaried  officials,  the  most  important  of  whom  was  the 
chancellor,  who  presided  in  it  and  directed  its  business.  Here  was 
the  origin  of  the  chancellor's  equitable  jurisdiction,  for  petitions 
craving  the  aid  of  the  king  and  his  council  were  continually  referred 
to  the  chancellor  for  consideration,  until  the  reference  became  so 
much  a  matter  of  course  that  ultimately  petitions  were  addressed 
directly  to  him  in  the  first  instance. 

Down  to  the  fall  of  Cardinal  Wolsey,  in  1529,  the  office  of  chan- 
cellor, with  a  few  unimportant  exceptions,  had  been  filled  by  the 
great  clerics  of  the  kingdom,  who  were  also  in  most  cases  at  the 
head  of  the  chief  ecclesiastical  court  of  the  realm.  It  was  only 
natural,  therefore,  when  the  chancellor's  judicial  powers  in  lay 
matters  became  established,  that  he  should  adopt  a  procedure 
modeled  after  that  of  the  ecclesiastical  courts.  Since  the  ecclesias- 
tical courts  had  no  jurisdiction  over  property,  their  decrees  were 
enforced  by  sentences  of  excommunication;  and,  if  the  party  proved 
contumacious,  a  writ  de  excommunicato  capiendo  was  issued,  which 

11  In  a  History  of  Equity,  written  in  1890,  by  D.  M.  Kerley,  on  chapters  1 
and  2  of  which  work  the  present  sketch  is  largely  based,  are  given  many  in- 
stances of  the  exercise  of  judicial  functions  by  the  king.  Parliament  also 
assumed  the  power  of  deciding  causes,  and  an  instance  is  of  record  where 
a  dispute  occurred  between  parliament  and  the  judges  upon  a  point  of  law. 
Introduction  to  Year  Book,  13  &  14  Edw.  III.,  Pike,  p.  xxxvii. 


NATURE    AND    DEFINITION    OF    EQUITY.  [Ch.   1 

his  arrest  and  imprisonment  by  the  secular  authorities. 

.  the  chancellor  likewise  cni... red  his  decrees  and  orders  by 

D  personam,  and,  as  a  rule,  he  disclaimed  jurisdiction  in 

Here  was  the  root  of  the  peculiar  equitable  remedies,  such 

motion  and  Bpecific  performance;  for,  by  enforcing  his  decrees 

I  irson,  the  chancellor  had  the  power  of  compelling  the 

to  do  or  refrain  from  doing  what  was  therein  commanded.    The 

ion-law  courts,  od  the  other  hand,  whose  judgments  were  en- 

,1  primarily  out  of  the  property  of  the  unsuccessful  litigant, 

powerless  in  this  class  of  cases.     Hence,  in  the  development 

of  its  jurisprudence,   equity   assumed  jurisdiction  in  many  cases 

where  the  common  law  recognized  a  right,  but  for  the  violation  of 

which  it  furnished  uo  adequate  remedy. 

But,  as  has  been  shown  in  the  foregoing  sketch,  the  origin  of  the 
equity  Bystem  of  jurisprudence  lies  not  so  much  in  the  inadequacy 
of  tli--  remedies  and  the  procedure  of  the  common-law  courts  as  in 
the  fact  i har  mat i cis  of  "grace  and  conscience,"  as  they  were  called 
in  the  early  days,  were  never  considered  as  falling  within  the  scope 
of   the   common-law   jurisdiction.     The   equitable  jurisdiction   over 
-.  for  instance,  does  certainly  not  rest  on  defects  in  the  reme- 
or  procedure  of  the  common  law. 
The  early  chancellors,  as  has  already  been  observed,  were  ec- 
clesiastical  dignitaries,  and  they  possessed  immense  political  power. 
\'-\t  to  the  king,  my  lord  chancellor  wras  undoubtedly  the  greatest 
man  in  the  kingdom.     For  many  centuries  their  equitable  jurisdic- 
tion remained  untrammeled  by  any  definite  rale.    In  the  language 
llackstone,18  the  decrees  of  the  court  of  chancery  down  to  the 
reign  of  Elizabeth   were  "rather  in  the  nature  of  awards  formed 
•  •n   the  sudden   pro  re  nata,  with  more  probity  of  intention  than 
knowledge  of  the  subject,  founded  on  no  settled  principles,  as  being 
never  designed  and   therefore  never  used  for  precedents."13     But, 

BL  Comm.  3. 

on  as  to  the  power  of  the  chancellor  is  shown  by  the  defini- 
tions of  equity  given  by  the  older  text  writers.     Thus,  in  FY>n- 
D  Equity  It  is  said  (book  1,  c.  1,  §  3):     "So  there  will  be  a  necessity 
to  natural  principles,  that  what  is  wanting  to  the  finite 
may  l*>  supplied  out  of  that  which  is  infinite.     And  this  is  properly  what  is 
lity,  in  opposition  to  strict  law.    *    *    *    And  thus  in  chancery  every 
particular  case  Btanda  upon  its  owu  particular  circumstances;   and,  although 


Cll.    1]  EQUITY    DEFINED.  7 

in  the  course  of  time,  judicial  equity  became  crystallized  and  de- 
fined; principles  and  doctrines  were  formulated  which,  form  the 
basis  of  all  decisions;  and  courts  of  equity  have,  as  regards  these 
principles  and  doctrines,  no  more  discretionary  powers  than  courts 
of  common  law.14  In  fact,  it  may  be  said  that,  for  a  long  time  past, 
judicial  equity  has  been  as  positive  and  well  settled  a  body  of  rules 
as  the  common  law  itself.15  This  distinction  is,  however,  to  be 
kept  in  mind :  "The  rules  of  courts  of  equity  are  not,  like  the  rules 
of  the  common  law,  supposed  to  have  been  established  from  time 
immemorial.  *  *  *  [In  many  cases]  we  can  name  the  chan- 
cellors who  first  invented  them,  and  state  the  date  when  they 
were  first  introduced  into  equity  jurisprudence,  and  therefore  in 
cases  of  this  kind  the  older  precedents  in  equity  are  of  very  little 
value.  The  doctrines  are  progressive,  refined,  altered,  and  im- 
proved; and,  if  we  want  to  know  what  the  rules  of  equity  are,  we 
must  look,  of  course,  rather  to  the  more  modern  than  the  more 
ancient  cases." 16 

the  common  law  will  not  decree  against  the  general  rule  of  law,  yet  chancery 
doth,  so  as  the  example  introduce  not  a  general  mischief.  Every  matter,  there- 
fore, that  happens  inconsistent  with  the  design  of  the  legislator,  or  is  contrary 
to  natural  justice,  may  find  relief  here."  To  this  stage  of  its  development 
the  famous  criticism  of  equity  by  Selden  well  applies:  "Equity  is  a  roguish 
thing.  For  law  we  have  a  measure,  and  know  what  we  trust  to.  Equity  is 
according  to  the  conscience  of  him  that  is  chancellor;  and,  as  that  is  larger 
or  narrower,  so  is  equity.  'Tis  all  one  as  if  they  should  make  his  foot  the  stand- 
ard for  the  measure  we  call  a  chancellor's  foot.  What  an  uncertain  measure 
would  this  be!  One  chancellor  has  a  long  foot,  another  a  short  foot,  a  third 
an  indifferent  foot.  'Tis  the  same  thing  in  the  chancellor's  conscience."  Table 
talk,  tit.  "Equity." 

14  In  Gee  v.  Pritchard  (1818)  2  Swanst.  402,  Lord  Eldon  said:  "The  doctrines 
of  this  court  ought  to  be  as  well  settled,  and  made  as  uniform  almost  as  those  of 
the  common  law,  laying  down  fixed  principles,  but  taking  care  that  they  are 
to  be  applied  according  to  the  circumstances  of  each  case.  I  cannot  agree 
that  the  doctrines  of  this  court  are  to  be  changed  with  every  succeeding 
judge.  Nothing  would  inflict  on  me  greater  pain,  in  quitting  this  place,  than 
the  recollection  that  I  had  done  anything  to  justify  the  reproach  that  the  equity 
of  this  court  varies  like  the  chancellor's  foot." 

is  Wright  v.  Ellison,  1  Wall.  16,  22. 

16  Jessel,  M.  R.,  in  Re  Hallett's  Estate,  13  Oh.  Div.  696,  710. 


3  PRINCIPLES    DEFINING    AND    LIMITING    J  UKISDICTION.  [Ch.   2 

CHAPTER  II. 
PRINCIPLES  DEFINING  AND  LIMITING  JURISDICTION. 

\'o  Jurisdiction  over  Crimes. 

No  Jurisdiction  Where  the  Legal  Remedy  Is  Adequate. 

Jurisdiction  not  Divested  by  Enlargement  of  Legal  Remedy. 
;,.    Jurisdiction  Retained  to  Award  Complete  Relief, 
ti.    Assumption  of  Jurisdiction  to  Prevent  Multiplicity  of  Suits. 

NO  JURISDICTION  OVER,  CRIMES. 

2.  A  court  of  equity  has  no  jurisdiction  to  prevent  the 
commission  or  interfere  with  the  prosecution  of  crimes, 
unless  the  power  is  conferred  by  express  statute. 

QUALIFIC ATION  —  Jurisdiction  over  an  action  for 
wrongful  invasion  of  private  property  rights  is 
not  divested  by  the  fact  that  the  wrongful  act  is 
also  a  crime. 

The  office  and  jurisdiction  of  a  court  of  equity,  unless  enlarged 

by  express  statute,  are  limited  to  the  protection  of  civil  rights.1     It 

has  jurisdiction  neither  to  prevent  the  commission  of  crimes,2  nor 

with  their  prosecution,3  pardon,  or  punishment.     To 

to   the  limitation  of  equitable  jurisdiction    to  protection   of  property 
rights  .  310. 

dty  will  not  restrain  the  issuance  of  licenses  to  gamblers  by  officers 

H-iation,  since  gambling  "is  a  violation  of  the  Criminal  Code,  which 

affords  ample  means  for  its  suppression."     Cope  v.  Fair  Ass'n,  99  111.  489. 

Injur  ost  violation  of  Sunday  laws  refused.    State  v.  Schweickardt, 

'  ..  406,  19  s.   W.  47;    Sparhawk  v.  Railway  Co.,  54  Pa.  St.  401.     Unli- 

1  dramchop  not  abated.    State  v.   Unrig,   14  Mo.  App.  413.    See,   also, 

•  Austria  v.  Day,  3  De  Gex,  F.  &  J.  217.    It  has  also  been  held  that 

In  this  country  suit  cannot  be  maintained  in  equity  by  the  attorney  general 

corporation  from  exercising  powers  in  violation  of  its  charter,  but 

ly  is  at  law  by  quo  warranto.     Attorney  General  v.  Tudor  Ice  Co., 

104  W  Attorney  General  v.  Utica  Ice  Co.,  2  Johns.  Ch.  371. 

.••  of  the  earliest  reported  cases  on  this  subject  is  Mayor,  etc.,  of  York 

L742)  2  Atk.  302,  where  Lord  Hardwicke  laid  down  the  general 

n  that  chancery  has  no  restraining  power  over  criminal  prosecutions; 


Ch.   2J  NO    JURISDICTION    OVER   CRIMES.  9 

assume  such  a  jurisdiction  is  to  invade  the  domain  of  courts  of 
common  law,  or  of  the  executive  or  administrative  department  of 
the  government. 

In  some  of  the  states,  however,  jurisdiction  has  been  conferred 
by  statute  on  courts  of  equity  to  enforce  criminal  laws  prohibiting 
the  liquor  traffic,  by  abating  as  nuisances,  at  the  suit  of  the  state  or 
of  private  persons  not  specially  damaged,  the  places  where  the 
liquor  is  sold;  and  it  has  been  held  that  such  statutes  are  not  un- 
constitutional as  depriving  the  citizen  of  his  right  to  trial  by  jury.4 

It  is  also  well  settled  that  an  individual  menaced  in  his  property 
rights  by  the  unlawful  act  of  another  is  not  precluded  from  suing 
in  equity  merely  because  the  unlawful  act  is  also  a  crime.  It  is  only 
when  the  injury  is  general  and  public  in  its  effects,  and  no  private 

but  plaintiffs,  having  first  brought  suit  in  chancery  to  determine  a  right  of 
fishery  in  the  River  Ouse,  were  oi'dered  to  discontinue,  until  the  termination 
of  the  chancery  suit,  a  criminal  prosecution  subsequently  instituted  by 
them  against  defendants  for  the  same  acts.  In  the  following  English  cases 
the  jurisdiction  of  a  court  of  equity  to  restrain  criminal  prosecution  is  denied: 
Montague  v.  Dudman,  2  Ves.  Sr.  396,  398;  Attorney  General  v.  Cleaver,  18  Ves. 
218;  Turner  v.  Turner,  15  Jur.  218;  Saull  v.  Browne,  10  Ch.  App.  64;  Kerr 
v.  Corporation  of  Preston,  6  Ch.  Div.  463  (characterizing  Lord  Hardwicke's 
decision  in  the  first  case  cited  as  doubtful).  In  the  American  courts  the 
principle  has  been  very  generally  upheld,  and  has  been  applied  whether  the 
prosecutions  or  arrests  sought  to  be  restrained  arose  under  statutes  of  the  state 
or  under  municipal  ordinance.  West  v.  Mayor,  10  Paige,  539;  Davis  v.  So- 
ciety, 75  N.  Y.  362;  Tyler  v.  Hamersley,  44  Conn.  419,  422;  Stuart  v.  Board, 
83  111.  341;  Devron  v.  First  Municipality,  4  La.  Ann.  11;  Moses  v.  Mayor, 
52  Ala.  198;  Gault  v.  Wallis,  53  Ga.  675;  Phillips  v.  Mayor,  etc.,  61  Ga.  386; 
Cohen  v.  Goldsboro  Com'rs,  77  N.  C.  2;  Peirce  Oil  Co.  v.  City  of  Little  Rock, 
39  Ark.  412;  Spink  v.  Francis.  19  Fed.  670,  20  Fed.  567;  Suess  v.  Noble,  31 
Fed.  S55;  In  re  Sawyer,  124  U.  S.  210,  8  Sup.  Ct.  482;  Hemsley  v.  Myers,  45 
Fed.  283;  Crighton  v.  Dahnier,  70  Miss.  602,  13  South.  237;  Chisholm  v. 
Adams,  71  Tex.  67S,  10  S.  W.  330;  Poyer  v.  Village  of  Desplaines,  123  111. 
Ill,  13  N.  E.  819  (repeated  prosecutions).  In  two  cases  decided  by  inferior 
courts  of  the  state  of  New  York,  however,  criminal  prosecutions  were  re- 
strained: Wood  v.  City  of  Brooklyn,  14  Barb.  425;  Manhattan  Iron  Works 
Co.  v.  French,  12  Abb.  N.  C.  446. 

*  Littleton  v.  Fritz,  65  Iowa,  488,  22  N.  W.  641;  Mugler  v.  Kansas,  123  U. 
S.  623.  672,  8  Sup.  Ct.  273;  Eilenbecker  v.  District  Ct.  of  Plymouth  Co.,  134 
U.  S.  31,  10  Sup.  Ct.  424;  State  v.  Saunders,  66  N.  H.  39,  25  Atl.  588;  Carleton 
v.  Rugg,  149  Mass.  550,  22  N.  E.  55. 


10  PRINCIPLES    DEFINING    AND    LIMITING    JURISDICTION.  [Ch.   2 

right  is  violated,  in  contradistinction  to  the  rights  of  the  rest  of 
the  public,  that  individuals  are  precluded  from  bringing  suits.5 


ADEQUATE  REMEDY  AT  LAW. 

3.  Equity  lias  no  jurisdiction  where  there  has  always 
been  a  plain,  adequate,  and  complete  remedy  at  law. 

Whenever  a  court  of  law  is  competent  to  take  cognizance  of  a 
right,  ami  has  power  to  proceed  to  a  judgment  which  affords  a 
plain,  adequate,  and  complete  remedy,  the  plaintiff  must  proceed  at 
law,  because  the  defendant  has  a  constitutional  right  to  a  trial  by 
jury."  This  principle  has  been  observed,  not  perhaps  from  the  ear- 
liest period  of  the  recorded  history  of  the  English  chancery  court,7 
but  certainly  ever  since  equity  jurisprudence  has  been  reduced  to  a 
definite  system.8  Thus,  courts  of  equity  have  steadily  refused  to  en- 
tertaiii  jurisdiction  of  actions  for  the  recovery  of  land,  since  the  legal 
remedy  by  ejectment  is  adequate;9   and  it  has  been  held  that  the 

fact  that  the  accumulation  of  nitroglycerine  within  the  corporate  lim- 
a  city  is  made  a  crime  does  not  prevent  a  private  citizen  from  having 
it  enjoined,  where,  in  case  of  an  explosion,  he  would  suffer  an  injury  in  person 
or  property  nol  sustained  by  the  public  in  general.     People's  Gas  Co.  v.  Tyner, 
131   End  UTT.  ::i   X.  E.  59;    Greenfield  Gas  Co.  v.  People's  Gas  Co.,  131  Ind. 
•".'.''.'.  ::i   N.  E.  »n.    So  a  threatened  violation  of  an  ordinance  prohibiting  the 
:'  wooden  buildings  within  the  fire  limits  of  a  city  will  be  enjoined 
at  suit  of  private  persons,  who  would  sustain  irreparable  injury,  though  the 
building  would  not  be  a  nuisance  per  se.    First  Nat.  Bank  v.  Sarlls,  129  Ind. 
201,  28  N.  E.  434.     The  fact  that  a  nuisance  is  a  crime,  and  punishable  as 
•  loes  not  deprive  equity  of  its  jurisdictiou  to  restrain  and  abate  by  injunc- 
Minke  v.  Bopeman,  ST  111.  450;    Blanc  v.  Murray,  36  La.  Ann.  102. 
:■!>  v.   Babin,   19  How.  271,   277;    Lewis  v.   Cocks,   23  Wall.   466,   467; 
.     New  Orleans  Canal  &  Banking  Co.,  141  U.  S.  656,  12  Sup.  Ct.  113; 
Killian  v.  Ebbinghaus,  110  U.  S.  508,  573,  4  Sup.  Ct.  232;    Porter  v.  French- 
ify &  Mt  D.  Land  &  Water  Co.,  84  Me.  195,  24  Atl.  814;    Watson  v. 
11,  :;i  W.  Va.  406,  V2  S.  E.  724;    McMillan  v.  Mason,  71  Wis.  405,  37  N. 
w.  jr.::;    Williams  v.  Haynes,  7S  Ga.  133;    Avery  v.  Empire  Woolen  Co.,  82 
X.  V.  582. 
7  I.-  wis  v   Co<  ks,  'j::  Wall.  466,  467. 

I  Tenham  v.  Herbert,  2  Atk.  483. 
•Hipp  v  9  How.  271;    Lewis  v.  Cocks,  23  Wall.  466. 


Ch.   2]         NOT    DIVESTED    BY    ENLARGEMENT    OF    LEGAL    REMEDY.  11 

mere  fact  that  damages  for  breach  of  contract  cannot  be  ascertained 
with  precision  does  not  warrant  a  court  of  equity  in  issuing  injunc- 
tion and  decreeing  specific  performance.10 

But,  to  exclude  the  jurisdiction  of  equity,  the  remedy  at  law 
must  be  as  practical,  and  as  efficient  to  the  ends  of  justice  and  its 
prompt  administration,  as  the  remedy  in  equity.11  Thus,  a  vendee  of 
land  will  be  compelled  in  equity  to  pay  the  agreed  price,  though  the 
vendor  has  also  a  remedy  at  law  by  action  for  breach  of  contract; 1S 
and  equity  will  assume  jurisdiction  of  an  action  involving  long  and1 
complicated  accounts,  though  there  is  also  a  remedy  at  law.13 

An  erroneous  adjudication  that  the  legal  remedy  is  inadequate,  and 
that  the  case  is  therefore  of  equitable  cognizance,  is  not,  however, 
necessarily  void,  within  the  meaning  of  the  general  rule  that  the 
judgment  of  a  court  not  having  jurisdiction  of  the  subject-matter  is 
an  absolute  nullity,  and  may  be  attacked  collaterally.14  Whenever 
a  court  has  power  to  enter  on  an  inquiry,  its  adjudication  is  binding 
on  the  parties,  though  it  may  be  wrong.15 


JURISDICTION  NOT  DIVESTED  BY  ENLARGEMENT  OF 
LEGAL  REMEDY. 

4.  The  jurisdiction  of  equity  is  not  ousted  by  the  en- 
largement of  legal  remedies  by  judicial  construction;  nor 

io  Texas  &  P.  By.  Co.  v.  Marshall,  136  U.  S.  393,  10  Sup.  Ct.  846. 

ii  Tyler  v.  Savage,  143  U.  S.  79,  95,  12  Sup.  Ct.  340;  Kilbourn  v.  Sunderland, 
130  U.  S.  505,  9  Sup.  Ct.  594;  Hipp  v.  Babin,  19  How.  27S;  Lewis  v.  Cocks, 
23  Wall.  470;  Board  of  Chosen  Freeholders  v.  Newark  City  Nat.  Bank,  48 
N.  J.  Eq.  51,  21  Atl.  185;  Hodges  v.  Rowing,  58  Conn.  12,  18  Atl.  979;  Hen- 
derson v.  Johns,  13  Colo.  2S0,  22  Pac.  461;  Godfrey  v.  White,  60  Mich.  443, 
27  N.  W.  593;  Warner  v.  McMullin,  131  Pa.  St.  370,  18  Atl.  1056;  Nease  v. 
Aetna  Ins.  Co.,  32  W.  Va.  2S3,  9  S.  E.  233;  Darrah  v.  Boyce,  62  Mich.  4S0, 
29  N.  W.  102;   Overmire  v.  Ha  worth,  48  Minn.  372,  51  N.  W.  121. 

12  Hodges  v.  Kowing,  58  Conn.  12,  18  Atl.  979.  But  see  Holley  v.  Anness 
(S.  C.)  19  S.  E.  646. 

is  Warner  v.  McMullin,  131  Pa.  St.  370,  18  Atl.  1056.  See,  as  to  jurisdic- 
tion of  equity  over  accounts,  post,  247. 

"Mellen  v.  Moline  Malleable  Iron  Works,  131  U.  S.  352,  367,  9  Sup.  Ct.  781; 
Goodman  v.  Winter,  64  Ala.  410,  432. 

is  Van  Fleet,  Coll.  Attack,  p.  82,  §  61. 


12  PRINCIPLES    DEFINING    AND    LIMITING    JURISDICTION.  [Ch.   2 

by  legislative   enactment,   unless   abrogated   expressly  or 
by  fair  interpretation. 

Equity  has  constantly  reacted  on  the  common  law,  and  the  rigor 
of  many  of  its  ancient  rales  lias  been  relaxed.  Thus,  equity  origi- 
nally assumed  jurisdiction  of  actions  on  lost  bonds  or  other  instru- 
ments, because  courts  of  law  refused  to  assist  plaintiff  who  could 
qoI  make  profert  of  the  instrument  Afterwards  the  courts  of  law 
changed  the  rule,  and  permitted  a  man  to  declare  on  a  lost  bond. 
Lord  Thurlow  held  that  the  equity  jurisdiction  over  this  class  of  ac- 
i ions  was  qoI  thereby  divested;18  and  Lord  Eldon,17  some  years 
later,  said:  'This  court  will  not  suffer  itself  to  be  ousted  of  any 
part  of  its  original  jurisdiction  because  a  court  of  law  happens  to 
fall  in  love  with  the  same  or  a  similar  jurisdiction." 

Bo  it  has  been  generally  held  that  the  statutory  creation  of  a  rem- 
edy  at  law  in  cases  theretofore  exclusively  cognizable  in  equity  does 
doI  destroy  or  abridge  the  equity  jurisdiction,  unless  it  is  either 
expressly  or  by  fair  interpretation  so  provided.  Thus,  the  ancient 
jurisdiction  of  equity  over  suits  to  charge  the  separate  property 
of  a  married  woman  with  her  debts  has  been  held  not  to  be  divested 
by  a  statute  giving  creditors  the  right  to  sue  at  lav;18  and  a 
Bpecial  statutory  proceeding  enabling  a  court  to  vacate  its  own 
judgments  rendered  at  a  previous  term,  for  fraud  practiced  by  the 
successful  party,  has  been  held  not  to  exclude  or  limit  the  right 
of  a  party,  by  original  action  in  equity,  to  impeach  the  judgment 
"i-  enjoin  its  collection.19 

i«  Atkinson  v.  Leonard,  3  Brown.  Ch.  218,  224.  See,  to  the  same  effect,  Toul- 
min  v.  Price,  5  Ves.  235,  23S;  Bromley  v.  Holland,  7  Ves.  3;  East  India 
Co.  v.  Boddam,  9  Ves.  4G4,  466;    Reeves  v.  Morgan,  48  N.  J.  Eq.  429,  21  Atl. 

"  Byre  v.  Everett,  2  Rnss.  381,  3S2.     Equity  jurisdiction  not  ousted  in  case 

of  tn^t.  though  common-law  courts  now  afford  remedy  by  equitable  action  of 

psit    Varet  v.  New  York  Ins.  Co.,  7  Paige,  560,  24  Wend.  505.    Cases  of 

fraud,  mistake,  or  accident,  see  People  v.  Houghtaling,  7  Cal.  34S,  351;   Boyce's 

v.  Grundy,  3  Pet.  210,  215.    Suits  by  sureties,  Sailly  v.  Elmore,  2  Paige, 

Schroeder  v.  Loeber,  75  Md.  195,  23  Atl.  579,  24  Atl.  226; 

Mayne  v.  Griswolu,  :;  Sandf.  463;  White  v.  Meday,  2  Edw.  Ch.  486. 

"Thrasher  v.  Doig,  18  Fla.  S09;  Rooney  v.  Michael,  84  Ala.  585,  4  South. 
421;   Phippa  v.  Kelly,  12  Or.  213,  6  Pac.  707. 

rt  v-  Phillips,  l]  l  »hio  st.  514.     See,  also,  Case  v.  Fishback,  10  B.  Mon. 


Ch.   2]       RETENTION    OF    JURISDICTION    TO    AWARD    COMPLETE    RELIEF.        13 

While  the  foregoing  is  an  accurate  statement  of  the  judical 
theory,  nevertheless  it  must  be  admitted  that  the  practical  result 
of  the  enlargement  of  the  common-law  remedies  has  been  to  reduce 
some  of  the  ancient  heads  of  equity  jurisdiction  to  a  state  of  "in- 
nocuous desuetude."  Thus,  discovery  in  aid  of  legal  proceedings 
is  no  longer  necessary,  since  parties  have  been  rendered  competent 
witnesses  by  statute;  equitable  actions  to  charge  the  separate  prop- 
erty of  a  married  woman  are  practically  obsolete  in  states  whose 
statutes  place  her  on  the  footing  of  a  feme  sole  so  far  as  property 
rights  are  concerned;  and  an  assignee  of  a  legal  chose  in  action, 
who  may  now  sue  at  law  in  the  name  of  his  assignor  in  those  states 
wherein  he  is  not  required  to  sue  in  his  own  name,  would  have  no 
standing  in  equity,  though  anciently  the  court  of  chancery  was 
the  only  tribunal  which  would  protect  his  rights.20 

RETENTION  OF  JURISDICTION  TO  AWARD  COMPLETE 

RELIEF. 

5.  Equity  jurisdiction,  having  rightfully  attached  to  a 
controversy,  will  be  made  effectual  for  the  purpose  of  com- 
plete relief,  though  it  may  involve  the  adjudication  of 
purely  legal  questions. 

"Where  this  court  can  determine  the  matter,  it  shall  not  be  a 
handmaid  to  other  courts,  nor  beget  a  suit  to  be  ended  elsewhere," 
is  the  graphic  manner  in  which  this  principle  was  first  expressed  by 
Lord  Nottingham.21  It  rests  on  the  principle  that  equity  prevents 
multiplicity  of  suits.22 

40,  41;  King  v.  Payn,  18  Ark.  583,  587,  588;  Payne  v.  Bullard,  23  Miss.  8S,  90; 
Lane  v.  Marshall,  1  Heisk.  (Tenn.)  30,  34.  Jurisdiction  as  to  discovery  not 
affected  by  statute  authorizing  examination  of  parties  as  witnesses  in  courts 
of  law.  Cannon  v.  McNab,  48  Ala.  99;  Shackelford  v.  Bankhead,  72  Ala.  476; 
Handley  v.  Heflin,  84  Ala.  600,  4  South.  725.    See,  as  to  discovery,  post,  318. 

20  l  Pom.  Eq.  Jur.  §  281. 

21  Parker  v.  Dee,  2  Ch.  Cas.  200.  For  recent  decisions  announcing  this  prin- 
ciple, see  Valentine  v.  Riebardt,  126  N.  Y.  272,  27  N.  E.  255;  Lynch  v.  Met- 
ropolitan El.  R.  Co.,  129  N.  Y.  274,  29  N.  E.  315;  Van  Rensselaer  v.  Van  Rens- 
selaer, 113  N.  Y.  213,  21  N.  E.  75. 

22  Jesus  College  v.  Bloom,  3  Atk.  262,  263;  Turner  v.  Pierce,  34  Wis.  658; 
Eastman  v.  Savings  Bank,  58  N.  H.  421;  McGean  v.  Railroad  Co.,  133  N.  Y. 
16,  30  N.  E.  647. 


11  PRINCIPLES    DEFINING    AND    LIMITING    JURISDICTION.  [Ch.   2 

To  authorize  the  application  of  this  principle,  the  party  invoking 
it  must  prove  facts  bringing  the  case  within  the  general  jurisdic- 
tion of  equity,  or  he  must  at  least  show  that  he  brought  the  suit  in 
faith,  supposing  and  having  reasons  to  suppose  himself  en- 
title.1  to  equitable  relief."  The  court  may  then  grant  him  both  equi- 
table  and  legal  relief.-'  or  it  may  grant  him  legal  relief  alone,  if 
equitable  relief  is  impracticable.25 

Thus,  on  a  bill  for  discovery  in  a  matter  involving  purely  legal 
questions,  equity  will  retain  jurisdiction  for  all  purposes,  provided 
plaintiff  has  no  other  means  of  proving  his  case;28  where  plaintiff 
makes  out  a  case  entitling  him  to  an  injunction  against  a  nuisance, 
a  court  of  equity  will,  as  an  incident  to  such  relief,  consider  and  set- 
tle the  question  of  damages;27  after  reforming  a  contract,  equity 
will  award  damages  for  its  breach;28  and  relief  by  award  of 
compensation  has  been  decreed  where  specific  performance  of  a  con- 
tract has  become  impracticable.29  The  constitutional  right  to  trial 
by  jury  is  not  infringed,  in  such  cases,  by  award  of  legal  relief.30 

Milkman  v.  Ordway,  106  Mass.  232;   Case  v.  Minot,  158  Mass.  577,  33  N. 
r:.  Tin.. 

rmley  v.  Clark.  134  U.  S.  338,  349,  10  Sup.  Ct.  554;    Harding  v.  Fuller, 

l  11  111.  308,  30  N.  E.  1053;    Virginia  &  A.  M.  &  M.  Co.  v.  Hale,  93  Ala.  542, 

256;    Turner  v.  Pierce,  34  Wis.  658. 

>aton  v.  Gibson,  29  S.  C.  514,  7  S.  E.  833;   Case  v.  Minot,  158  Mass.  577, 

33  N.  i:.  700;   Holland  v.  Anderson,  38  Mo.  55;    Combs  v.  Scott,  76  Wis.  662, 

45  X.  W.  532. 

w  Virginia  &  A.  M.  &  M.  Co.  v.  Hale,  93  Ala.  542.  9  South.  256;    Lyons  v. 
Miller,  f.  Grat  427.  438;  Russell  v.  Clark,  7  Crancb,  69. 

•i  Fleiscbner  v.  Citizens'   Real-Estate  &  Imp.  Co.  (Or.)  35  Pac.  174;    Brick- 
ner  Woolen  Mills  Co.  v.  Henry,  73  Wis.  229,  40  N.  W.  809;   Bassett  v.  Manu- 
facturing Co.,  43  X.  II.  249;   Whipple  v.  Fair  Haven,  63  Vt.  221,  21  Atl.  533; 
v.  Minot.  158  Mass.  .",77,  33  X.  E.  700. 

Hall  (Miss.)  13  South.  39;    Phoenix  Ins.  Co.  v.  Rylana,  ot>  Aid. 
i::7.  1<;  Atl.  109. 

man  v.  Ordway,  106  Mass.  232;    Combs  v.  Scott,  76  Wis.  662,  45  N. 

W.  532;   Woodcock  v.  Bennett,  1  Cow.  711;  Rankin  v.  Maxwell,  2  A.  K.  Marsh. 

Further  illustrations:     Action  to  rescind  deed  for  breach  of  condition 

ied  to  award  damages.     Pinkum  v.  City  of  Eau  Claire,  81  Wis.  301,  51 


&  V.  !:.\.  Co.  v.  McKenzie,  S5  Ala.  549,  5  South.  322;  Harding 
II  111.  308,  30  X.  E.  1U5LJ;    Cogswell  v.  Railroad  Co.,  105  N.  Y.  319" 
1 1  X.  E.  518. 


Ch.   2]  PREVENTION    OF    MULTIPLICITY    OF   SUITS.  15 

Where,  however,  plaintiff  makes  out  no  case  entitling  him  to 
equitable  relief,  and  the  facts  show  that  he  had  no  reason  to  sup- 
pose himself  entitled  to  such  relief  when  the  action  was  brought, 
equity  will  not  retain  the  cause  to  award  him  legal  relief,  but  will 
leave  him  to  pursue  his  remedy  in  a  court  of  law.31  Thus,  in  an  ac- 
tion to  foreclose  a  mortgage,  where  plaintiff  fails  to  establish  the 
mortgage,  a  money  judgment  for  the  amount  of  the  debt  cannot  be 
rendered;32  nor  will  damages  be  awarded  in  an  action  for  specific 
performance,  where  plaintiff  knew  that  he  was  not  entitled  to 
equitable  relief  when  the  action  was  brought.38 

PREVENTION    OF  MULTIPLICITY   OP  SUITS. 

6.  Equity  will  assume  jurisdiction  to  prevent  multiplic- 
ity of  suits: 

(a)  Where  numerous  persons  have  a  community  of  in- 
terest or  a  common  right  or  title  in  the  subject- 
matter  of  controversy,  as  against  a  common  ad- 
versary,— or  where  each  has  an  equitable  cause 
of  action  or  an  equitable  defense  against  such 
adversary,  involving  the  same  questions  of  law 
and  fact. 

N.  W.  550;  Martin  v.  Martin,  44  Kan.  295,  24  Pac.  418.  In  proceedings  to 
establish  title  under  burnt  records  act  of  Illinois,  equity  will  determine  all 
issues,  legal  as  well  as  equitable.  Gormley  v.  Clark,  134  U.  S.  338,  349,  10 
Sup.  Ct.  554;  Harding  v.  Fuller,  141  111.  308.  30  N.  E.  1053.  Action  to  con- 
strue will,  or  to  enjoin  executor  or  administrator,  will  be  retained  for  complete 
settlement  of  estate.  Withers  v.  Sims,  80  Va.  651;  Youmans  v.  Youmans,  26 
N.  J.  Eq.  149,  154;  Cowles  v.  Pollard,  51  Ala.  445.  Contra,  Gilliam  v.  Chan- 
cellor, 43  Miss.  437,  448.  See,  also,  Leighton  v.  Young,  10  U.  S.  App.  301, 
3  C.  C.  A.  176,  and  52  Fed.  439;  McGean  v.  Railway  Co.,  133  N.  Y.  16,  30 
N.  E.  647;  Haynes  v.  Whitsett,  18  Or.  454,  22  Pac.  1072;  Penn  v.  Ingles,  S2 
Va.  69;  Barnes  v.  Dow,  59  Vt.  530,  10  Atl.  258;  Currie  v.  Clark,  101  N.  C.  329, 
7  S.  E.  805;  Griffin  v.  Fries,  23  Fla.  173,  2  South.  206;  Crump  v.  Ingersoll, 
47  Minn.  179,  182,  49  N.  W.  739. 

si  Dodd  v.  Home  Ins.  Co.,  22  Or.  3,  28  Paa  881,  884,  and  29  Pac.  3;   W.  J. 
Johnston  Co.  v.  Hunt,  21  N.  Y.  Supp.  314,  66  Hun,  504. 

32  Dudley  v.  Congregation  of  St.  Francis,  138  N.  Y.  451,  458,  34  N.  E.  2S1. 

33  Morgan  v.  Bell,  3  Wash.  554,  28  Pac.  925;    Saur  v.  Ferris,  145  111.  115, 
34  N.  E.  52;   McQueen  v.  Chouteau,  20  Mo.  222.    See,  also,  post,  286. 


1(J  PRINCIPLES    DEFINING    AND    LIMITING    JURISDICTION.  [Ch.   2 

(b)  Where  reiterated  litigation  at  law  between  the 
same  individuals  concerning  the  same  subject- 
matter  is  threatened,  or  has  actually  taken  place, 
without  conclusively   adjudicating   their   rights. 

This  principle  -rows  out  of  the  preceding  one  concerning  equity 
Jurisdiction  where  there  is  no  plain,  adequate,  and  complete  remedy 
at  law.  '  To  warrant  a  court  of  equity  in  assuming  jurisdiction 
to  prevenl  multiplicity  of  suits,  it  must,  however,  appear  that  the 
party  has  some  defense  to  the  numerous  suits  instituted  or  threat- 
!  against  him.35 

L  Turning  uow  to  the  first  class  of  cases  mentioned  in  the  black- 
text,  the  equity  jurisdiction  has  been  long  established  when- 
ever  numerous  persons  have  a  community  of  interest  or  a  common 
right  or  title  in  the  subject-matter  of  controversy;  it  matters  not 
whither  the  right  be  asserted  by  one  against  many,  or  by  many 
against  one.  This  form  of  action  is  technically  called  a  "bill  of 
";  and  the  illustrations  usually  given  are  disputes  as  to  rights 
of  common  by  a  numerous  body  of  tenants  on  one  side  and  their  land- 
li.nl  on  the  other,38  and  between  a  corporation  claiming  an  exclusive 
right  of  fishery  in  a  river  and  numerous  riparian  owners  setting  up 
adverse  rights.37  In  these  cases  the  numerous  persons  have  at  least 
a  community  of  interest  in  the  subject-matter  of  the  suit, — the  right 
of  common  in  the  one  case,  and  the  right  of  fishery  in  the  other. 
Modern  cases,  however,  have  extended  the  equitable  jurisdiction; 
ami  it  has  been  stated  that  equity  will  assume  jurisdiction  whenever 
tin-  rights  of  the  numerous  persons  depend  for  solution  on  the  same 
questions  of  law  and  fact,  though  purely  legal  rights  are  involved 

p.  10. 
its  v.  Pensacola  &  A.  R.  Co.,  29  Fla.  617,  11  South.  226. 
.    v.  Tenants  of  Bromsgrove  (1681)  1  Vera.  22;    Powell  v.  Earl  of 
I'.Avis  (1826)    1    lounge  &  J.   158;    Warrick  v.  Queen's  College  (1871)   6  Ch. 
App.   716.     (Mini-   illustrations:     Numerous  persons  having  easement  of  pas- 
Mi  alley  may  unite  in  a  bill  to  enjoin  its  obstruction.    Cadigan  v. 
Brown,  120  Mass.  193.     Right  of  numerous  mill  owner  to  draw  water  from  a 
common  reservoir  determined  in  one  proceeding.     Adams  y.  Manning,  48  Conn. 
477. 

Mayor  of  York  v.  Pilkington  UTo7)  1  Atk.  282. 


Ch.   2]  PREVENTION    OF    MULTIPLICITY    OF   SUITS.  17 

and  purely  legal  relief  can  be  conferred.38  It  is  believed,  however, 
that  this  statement  of  the  rule  is  too  broad;  and  that,  when  no  com- 
munity of  interest  in  the  subject-matter  of  the  suit  subsists  between 
the  numerous  persons,  there  must  exist  some  recognized  ground  for 
equitable  interference  aside  from  mere  multiplicity  of  suits.  The 
precise  question  arose  in  a  recent  Mississippi  case.39  Numerous 
persons  sued  a  railroad  company  at  law  for  the  destruction  of  their 
property  by  fire  alleged  to  have  been  caused  by  defendant's  negli- 
gence. The  company  then  filed  its  bill  in  equity  to  enjoin  the  prose- 
cution of  the  actions  at  law,  and  to  compel  a  determination  of  the 
entire  matter  in  a  single  suit  in  equity,  on  the  ground  that  the  same 
questions  of  law  and  fact  were  involved  in  each  case.  The  court, 
after  an  exhaustive  review  of  all  the  authorities,  denied  the  equity 
jurisdiction  in  such  cases,  saying:  "There  must  be  some  recognized 
ground  of  equitable  interference  or  some  community  of  interest  in 
the  subject-matter  of  controversy,  or  a  common  right  or  title  involved, 
to  warrant  the  joinder  of  all  in  one  suit;  or  there  must  be  some  com- 
mon purpose  in  pursuit  of  a  common  adversary,  where  each  may  re- 
sort to  equity,  in  order  to  be  joined  in  one  suit;  and  it  is  not  enough 
that  there  is  a  community  of  interest  merely  in  the  questions  of  law 
or  fact  involved."  40 

ss  l  Pom.  Eq.  Jur.  §§  250,  269;  Phelps,  Eq.  §  230;  Preteca  v.  Maxwell  Land 
Grant  Co.,  4  U.  S.  App.  326,  1  C.  C.  A.  607,  and  50  Fed.  674;  Osborne  v.  Wis- 
consin Cent.  R.  Co.,  43  Fed.  826. 

39  Tribette  v.  Illinois  Cent.  R.  Co.  (1892)  70  Miss.  182,  12  South.  32. 

40  This  is  believed  to  be  the  true  rule.  The  right  to  have  such  a  case  tried 
and  the  damages  assessed  by  a  jury  cannot  be  taken  away  merely  because 
litigation  by  numerous  other  persons  involving  the  same  questions  of  law  and 
fact  is  threatened.  The  following  cases  support  the  above  view:  Lehigh  Val. 
K.  Co.  v.  McFarlan,  31  N.  J.  Eq.  730;  National  Park  Bank  of  New  York  v. 
Goddard,  131  N.  Y.  494,  30  N.  E.  506;  Hanstein  v.  Johnson,  112  N.  C.  253, 
17  S.  E.  155;  Northern  Pac.  R.  Co.  v.  Amacker,  46  Fed.  233.  Equity  will  not 
entertain  jurisdiction  of  a  suit  to  cancel  municipal  bonds  in  the  hands  of 
numerous  persons  where  the  municipality  has  a  complete  defense  in  an  action 
at  law  should  suit  be  brought  thereon.  Farmington  Village  Corp.  v.  Sandy 
River  Nat.  Bank,  85  Me.  47,  26  Atl.  965.  For  actions  where  each  one  of  the 
numerous  persons  might  have  maintained  a  separate  suit  in  equity,  see  Ballou 
v.  Hopkinton,  4  Gray,  324;  New  York  &  N.  H.  R.  Co.  v.  Schuyler,  17  N.  Y. 
592;    Sheffield  Waterworks  v.  Yeomans,  2  Ch.  App.  8;    Foxwell  v.  Webster, 

eq.jur. — 2 


PRIM  HI.KS    DEFINING    AND    LIMITING    JURISDICTION.  [Ch.   2 

The  jurisdiction  to  prevent  reiterated  litigation  between  the 
same  individuals  concerning  the  same  subject-matter  originated  from 
the  inconclusive  nature  of  the  judgment  in  ejectment;  and  whenever 
plaintiff  had  satisfactorily  established  his  title  at  law,  but  yet  was 
threatened  with  further  litigation  from  new  attempts  to  controvert 
iiiy  would  grant  a  perpetual  injunction  to  quiet  plaintiff's  pos- 
:i  and  to  suppress  future  litigation.41  Though  equitable  inter- 
ference La  no  longer  necessary  to  prevent  reiterated  litigation  in  eject- 
in.  •ni.  Bince  the  enactment  of  statutes  rendering  the  judgment  there- 
in final  ami  conclusive  as  to  title,  the  principle  still  survives;  and  it 
is  «'ii  this  ground  that  equity  now  assumes  jurisdiction  to  restrain 
repeated  trespasses  by  one  person  on  the  land  of  another,42  and  to 
abate  a  continuing  nuisance.43  If,  however,  the  title  to  the  land  is 
disputed,  equity  will  not  interfere  until  it  has  been  satisfactorily 
established  at  law.44  Applying  this  principle,  it  has  also  been  held 
that,  where  numerous  suits  involving  the  same  subject-matter  be- 
i  ween  the  same  parties  are  pending  in  a  court  of  law  which  has  no 
power  i"  consolidate  them,  equity  will  stay  the  prosecution  of  all  but 
one  until  that  can  be  finally  heard  and  determined.45 

-  1 1      v  \  s.  250;    Lockwood  Co.  v.  Lawrence,  77  Me.  297;    Louisville,  N.  A 
;:y.  Co.  v.  Ohio  Yal.  Improvement  &  Contract  Co.,  57  Fed.  42. 
<'  Bar!  of  Bath  v.  Sherwin,  4  Brown,  Pari.  Cas.  373;    Eldridge  v.  Hill,  2 

•  !h.  281;    Marsh  v.  Reed,  10  Ohio,  347. 
<-  tlnssleman  v.  Marquis,  1  Bush.  465;   Lembeck  v.  Nye,  47  Ohio  St.  336,  24 
Warren  Mills  v.  New  Orleans  Seed  Co.,  65  Miss.  391,   4  South. 
lock  v.  Xoonan,  108  N.  Y.  179,  15  N.  E.  67;    Ladd  v.  Osborne,  79 
II  N.  \Y.  235. 
<    Kavanagh  v.  Railroad  Co.,  7S  Ga.  271,  273,  2  S.  E.  636;   Sheldon  v.  Rock- 
w.-ll,  a  Wis.  166,  17'J;   Eastman  v.  Amoskeag  Manuf'g  Co.,  47  N.  H.  71. 

rney  v.  Hadley,  32  Fla.  344,  14  South.  4;  Eldridge  v.  Hill,  2  Johns.  Ch. 
Lord  Tenham  v.  Herbert,  2  Atk.  483. 
«'  Third  Ave.  R.  Co.  v.  Mayor,  etc.,  54  N.  Y.  159. 


Ch.   3]  DEFINITION    AND   CLASSIFICATION    OF    MAXIMS.  19 

CHAPTER  III. 

THE  MAXIMS  OF  EQUITY. 

7.  Definition  and  Classification  of  Maxims. 

8.  Enabling  Maxims— No  Right  without  a  Remedy. 

9.  Equity  Regards  Substance  Rather  than  Form. 

10.  Equity  Looks  on  That  as  Done  which  Ought  to  be  Done* 

11.  Equity  Imputes  an  Intention  to  Fulfill  an  Obligation. 

12.  Equity  Acts  in  Personam,  and  not  in  Rem.  t 

13.  Equity  Acts  Specifically,  and  not  by  Way  of  Compensation. 

14.  Equality  is  Equity. 

15.  Restrictive  Maxims— Equity  Follows  the  Law. 

16.  Where  Equities  are  Equal,  the  Law  will  Prevail. 

17.  Where  There  are  Equal  Equities,  the  First  in  Order  of  Time  shall 

Prevail. 

18.  He  Who  Seeks  Equity  must  do  Equity. 

19.  He  Who  Comes  into  Equity  must  Come  with  Clean  Hands. 

20.  Equity  Aids  the  Vigilant,  not  Those  Who  Slumber  on  Their  Rights. 

DEFINITION    AND    CLASSIFICATION    OF    MAXIMS. 

7.  The  maxims  of  equity  are  pithy  statements  of  its 
acknowledged  and  fundamental  principles,  and  are  the 
germs  from  which  the  system  of  equity  jurisprudence  has 
been  largely  developed.1    They  may  be  classified2  as: 

(a)  Enabling. 

(b)  Restrictive. 

The  enabling  maxims  impel  the  court  to  action,  while 
the  restrictive  operate  to  keep  it  passive. 
The  enabling  maxims  are: 

(a)  Equity  will  not  suffer  a  right  to   be   without   a 

remedy. 

(b)  Equity  regards  substance  rather  than  form. 

i  See  1  Pom.  Eq.  Jur.  §  360. 

2  This  classification  was  first  suggested  in  Haynes'  Outlines  of  Equity  (page 
19),  and  was  perfected  by  Judge  Phelps  (Juridical  Equity  Abridged,  page  2G9), 
whose  arrangement  of  the  maxims  I  have  followed. 


20  THE    MAXIMS    OF    EQUITY.  [Ch.   3 

c)   Equity  looks  on  that  as   done   which   ought   to    be 
done. 

(d)  Equity  imputes  an  intention  to  fulfill  an  obligation. 

(e)  Equity  acts  in  personam,  and  not  in  rem. 
Equity  acts   specifically,  and   not  by  way  of  com- 
pensation. 

g )  Equality  is  equity. 
The  restrictive  maxims  are: 

b    Equity  follows  the  law. 

(i)   Where  the   equities  are  equal,  the  law  must  pre- 
vail. 

(j)  Where  there  are  equal  equities,  the  first  in  order 
of  time  shall  prevail. 

(k)  He  who  seeks  equity  must  do  equity. 

(1)  He  who  comes  into  equity  must  come  with  clean 
hands. 

(m)  Equity   aids  the  vigilant,  not  those  who  slumber 
on  their  rights. 

The  studenl  should  bear  in  mind  that,  like  proverbs,  the  practical 

\ nli t  these  maxims  lies  in  the  skill  and  judgment  with,  which 

they  are  applied  to  the  facts  of  each  particular  case;  that  they  do 
nut  express  in  each  and  every  case  an  exhaustive  statement  of  some 
independent  truth,  but  that  they  are  interdependent;  and  that,  con- 
sequently, some  one  of  the  restrictive  maxims  may  induce  the  court 
ithhold  the  relief  which  one  or  more  of  the  enabling  maxims 
impel  it  to  grant 

ENABLING   MAXIMS. 

8.  Equity  will  not  suffer  a  right  to  be  without  a  remedy. 
LIMITATIONS— (a)  The  right  asserted  must  not  be 
a  mere  moral  right,  and  it  must  not  contra- 
vene express  statutes,  or  the  declared  public 
policy  of  the  state, 
(b)  Equity  cannot  create  a  new  remedy  for  the 
enforcement  of  a  purely  legal  right  merely 
because  the  remedy  provided  by  law  proves 
inadequate  in  a  particular  instance. 


Ch.    3]  ENABLING    MAXIMS.  21 

This  maxim  lies  at  the  foundation  of  equity  jurisprudence,  which 
aims  to  supplement  the  defects  of  the  common  law;  but,  since  the 
crystallization  of  equity  into  a  body  of  definite  rules  and  principles, 
its  jurisdiction  depends,  not  so  much  on  the  nonexistence  of  a  rem- 
edy at  law,  as  on  the  question  whether  its  established  principles 
will  warrant  the  granting  of  the  relief  sought.  Applications  of  this 
maxim  in  modern  times  are,  however,  not  wanting.  "Take  such 
things  as  these:  The  separate  use  of  a  married  woman,  the  re- 
straint on  alienation,  the  modern  rule  against  perpetuities,  and 
the  rules  of  equitable  waste.  We  can  name  the  chancellors  who 
first  invented  them,  and  state  the  date  when  they  were  first  intro- 
duced into  equity  jurisprudence."  3  The  doctrines  that  the  unpaid 
capital  stock  of  a  corporation  is  a  trust  fund  for  the  benefit  of  cred- 
itors, and  the  invention  of  receivers'  certificates  as  security  for 
money  loaned  to  carry-  on  the  business  during  the  receivership, 
which  are  entitled  to  a  preference  over  all  prior  liens  on  the  prop- 
erty, have  been  cited  as  other  modern  instances  of  the  application 
of  this  maxim.4  And  it  may  be  stated  generally  that  whenever  a 
statute  or  a  constitution  creates  a  new  right, — especially  if  it  be 
equitable  in  its  nature, — and  provides  no  method  for  its  enforce- 
ment, equity  will  afford  relief.5  Thus,  equity  will  enforce  a  statu- 
tory lien  where  the  statute  itself  provides  no  method  of  enforce- 
ment;6 and  a  provision  of  the  interstate  commerce  act  prohibiting 
discrimination  against  connecting  carriers  was  enforced  by  man- 
datory injunction  against  the  employe's  of  a  discriminating  road, 

3  Jessel,  M.  R.,  in  Knatchbull  v.  Hallett,  13  Cb.  Div.  696,  710. 

*  Phelps,  Eq.  §  193. 

5  One  exception  to  this  principle  is  in  cases  of  contested  election,  based  on 
the  theory  that  these  are  political  matters,  with  which  courts  have  no  power 
to  deal.  See  Parmeter  v.  Bourne  (Wash.)  35  Pac.  586;  Dickey  v.  Reed,  78 
111.  262;  State  v.  Police  Jury,  41  La.  Ann.  850,  6  South.  777;  Skrine  v.  Jackson, 
73  Ga.  377;  Sanders  v.  Metcalf,  1  Tenn.  Ch.  419;  McWhirter  v.  Brainard,  5 
Or.  426.  However,  the  jurisdiction  of  equity  has  been  upheld  in  the  following 
contested  county-seat  elections:  Boren  v.  Smith,  47  I1L  482;  Down  v.  Board 
(Idaho)  26  Pac.  167;  Sweatt  v.  Faville,  23  Iowa,  321.  If  the  jurisdiction  of 
equity  is  limited  to  the  protection  of  property  rights,  these  cases  are  clearly 
erroneous.    See  post,  310. 

s  Gilchrist  v.  Helena,  H.  S.  &  S.  R.  Co.,  58  Fed.  708;  Lockett  v.  Robinson 
(Fla.)  12  South.  649. 


THE    MAXIMS    OF    EQUITY.  [Ch.   3 

who  had  declared  a  boycott  against  the  connecting  carrier,  and  who 
had  refused  to  handle  its  freight.'  In  this  last  case  it  was  said: 
■It  is  said  the  orders  issued  in  this  case  are  without  precedent.  Every 
just  order  or  rale  known  to  equity  courts  was  born  of  some  emer- 
gency, to  meel  some  now  condition,  and  was  therefore  in  its  time 
without  a  precedent  If  based  on  sound  principles,  and  beneficent 
results  follow  their  onforcement,  affording  necessary  relief  to  one 
party,  without  imposing  illegal  burdens  on  the  others,  new  remedies 
and  unprecedented  orders  arc  not  unwelcome  aids  to  the  chancellor 
i.)  meel  the  constantly  varying  demands  for  equitable  relief." 

/. '    'tat  '.'<•"••. 

\\'o  have  already  seen  that  abstract  moral  rights  are  enforced  nei- 
ther  at  l.i w  nor  in  equity,8  and  it  is  obvious  that  no  court  will  en- 
force any  right  opposed  to  express  statute  or  declared  public  policy.9 
In  this  respect  equity  follows  the  law.  Thus,  where  a  contract  is 
\"i<]  at  law  for  want  of  power  to  make  it,  a  court  of  equity  has  no 
jurisdiction  to  enforce  it,  or,  in  the  absence  of  fraud,  accident,  or 
mistake,  to  so  modify  it  as  to  make  it  legal,  and  then  enforce  it.10 

Tin-  second  limitation  likewise  results  from  the  operation  of  the 
restrictive  maxim  that  equity  follows  the  law.  Thus,  equity  will 
not  levy  a  tax,  or  subject  the  taxable  property  within  the  corporate 
limits  of  a  city  to  the  payment  of  a  judgment  against  it,  merely 
because  the  legal  remedy  by  mandamus  has  proved  inefficient 
tli rough  various  devices  of  the  city  authorities.11     "The  total  failure 

^  Toledo,  A.,  A.  &  N.  M.  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  746;    South- 
•  in  California  R.  Co.  v.  Rutherford,  02  Fed.  79G.    It  should  be  noted,  however, 
that  the  Interstate  commerce  act  expressly  authorizes  the  federal  courts  to  pre- 
::<1  restrain  its  violation.    U.  S.  v.  Elliot,  62  Fed.  801.    The  mere  fact  that 
is  novel,  and  is  not  brought  plainly  within  the  limits  of  some  adjudged 
nut  defeat  the  jurisdiction  of  equity.     Piper  v.  Hoard,  107  N.  Y.  73, 
13  N.  E.  626.     See,  also,  Joy  v.  St.  Louis,  138  U.  S.  1,  50,  11  Sup.  Ct.  243; 
D  \.  Royal  Arcanum,  46  N.  J.  Eq.  102,  18  Atl.  675;  Wickersham  v.  Crit- 
tenden, 03  Cal.  ;;i2,  lis  Pac.  788. 
8  Ante,  p.  1. 

man  v.  Low,  2  Edw.  Ch.  (N.  Y.)  324. 
»o  Hedges  v.  Dixon  Co.,  150  U.  S.  1S2,  14  Sup.  Ct.  71.    Where  bonds  issued 
by  a  county  In  aid  of  a  railroad  exceed  the  limit  authorized  by  law,  equity 
will  imt  cancel  the  excess,  and  enforce  payment  of  the  residue. 
n  Reea  v.  City  of  Watertown,  19  Wall.  100;   Heine  v.  Levee  Commissioners, 


Ch.   3]  ENABLING    MAXIMS.  23 

of  ordinary  remedies  does  not  confer  on  the  court  of  chancery  an 
unlimited  power  to  give  relief.  Such  relief  as  is  consistent  with  the 
general  law  of  the  land,  and  authorized  by  the  principles  and  prac- 
tice of  the  courts  of  equity,  will,  under  such  circumstances,  be 
administered.  But  the  hardship  of  the  case,  and  the  failure  of  the 
mode  of  procedure  established  by  law,  is  not  sufficient  to  justify  a 
court  of  equity  to  depart  from  all  precedent,  and  assume  unregulated 
power  of  administering  abstract  justice  at  the  expense  of  well-set- 
tled principle." ia 


9.  Equity  regards  substance  rather  than  form. 

This  maxim  operates  without  any  limitations.  Equity  will  in  no 
case  permit  the  veil  of  form  to  hide  the  true  effect  or  intent  of 
the  transaction.13  The  only  difficulty  is  in  determining  what  is 
matter  of  substance  and  what  of  form.14  This  maxim  was  long  ago 
applied  to  relieve  against  penalties  and  forfeitures.  The  usual 
security  in  olden  times  for  money  borrowed  seems  to  have  been  a 
bond  for  an  amount  considerably  larger  than  the  sum  borrowed, 
and  conditioned  to  be  void  if  such  sum,  with  interest,  was  paid  on 
a  specified  day.  The  courts  of  common  law  said  a  bargain  is  a 
bargain,  and,  if  the  debtor  made  default,  the  bond  became  absolute 
and  indefeasible,  and  the  creditor  was  entitled  to  recover  its  full 
amount.  Equity,  however,  looking  at  the  substance  of  the  transac- 
tion, said  that  the  bond  was  intended  merely  as  security  for  the 
money  borrowed;   and  if  the  debtor,  after  the  day  named,  offered 

19  Wall.  658;  Finnegan  v.  City  of  Fernandina,  15  Fla.  379;  Thompson  v. 
Allen  Co.,  115  U.  S.  550,  6  Sup.  Ct  140. 

12  Mr.  Justice  Miller  in  Heine  v.  Levee  Commissioners,  19  Wall.  655.  In 
accordance  with  this  principle,  it  has  also  been  held  that  the  nonexistence  of 
any  method  at  common  law  for  subjecting  a  debtor's  choses  in  action  to  the 
payment  of  a  judgment  does  not  authorize  a  resort  to  equity,  in  the  absence 
of  fraud,  trust,  or  other  ground  for  equitable  relief,  or  of  a  statute  conferring 
jurisdiction.  Donovan  v.  Finn,  Hopk.  Ch.  (N.  Y.)  59,  74,  followed  in  Greene 
v.  Keene,  14  R.  I.  388,  395,  where  authorities  are  collected.  Contra,  Hadden 
v.  Spader,  20  Johns.  554,  562. 

is  Snell,  Eq.  p.  43. 

"  Stockton  v.  Central  R.  Co.,  50  N.  J.  Eq.  52,  76,  24  Atl.  964. 


24  TIIK    MAXIMS   OF    EQUITY.  [Ch.   3 

to  repay  it,  with  in  (crest  and  expenses,  equity  would  restrain  the 
creditor  from  suing  at  law  for  the  amount  of  the  bond,  on  the 
ground  that  such  a  coin-so  was  unconscientious  and  oppressive. 
This  doctrine  was  gradually  extended  to  contracts  other  than  for 
the  repayment  of  money;  and  the  general  rule  now  is  that,  when- 

.!  penalty  or  forfeiture  is  inserted  to  secure  the  performance 
of  Bome  an  or  the  enjoyment  of  some  right,  the  latter  will  be  re- 
garded  as  the  real  and  principal  intent  of  the  instrument,  and  the 
penalty  or  forfeiture  as  merely  an  accessory,  and  the  debtor  will  be 
relieved  therefrom  on  compensating  the  creditor  for  the  damages 
he  has  actually  sustained.15 

This  maxim  is  also  at   the  foundation  of  the  law  of  mortgages. 
at  this  day,  a  mortgage  is  in  form  a  conveyance  conditioned 
to  be  void  on  tin-  repayment,  by  the  mortgagor,  on  a  specified  day, 
of  tin-  sum  borrowed,  with  interest.      The  coinmon-law  courts,  look- 
in-  merely  at  the  form  of  the  instrument,  held  the  mortgagee's  es- 

indefeasible,  unless  the  money  was  paid  on  the  very  day  stipu- 
Equity,  however,  looking  at  the  substance,  regarded  the 
transaction  merely  as  a  pledge  to  secure  the  money  borrowed,  and 
permitted  the  mortgagor  to  redeem  after  the  time  fixed,  on  payment 
of  principal  and  interest  then  due.10  Carrying  this  principle  still 
further,  it  is  held  that  an  absolute  deed,  taken  as  security  for  a 
debt,  is  in  equity  a  mortgage.17      "If  a  transaction  resolve  itself  into 

irity,  whatever  may  be  its  form,  and  whatever  name  the  par- 
ti- -s  may  choose  to  give  it,  it  is  in  equity  a  mortgage." 18 

Tin-  maxim  has  also  been  held  to  be  specially  applicable  in  cases 
of  suretyship,  with  respect  to  which,  whatever  may  be  the  form  of 
tip-  instrument,  or  the  obligation  of  the  parties  on  its  face,  a  court 

r  ni.  Eq,  Jur.  §  381;   2  Story,  Eq.  Jur.  §  1314;    Peachy  v.  Duke  of  Som- 

I  Strange,  447,  2  White  &  T.  Lead.  Cas.  Eq.  10S2;   Sloman  v.  Walter,  1 

Brown,  Ch.  41S,  2  White  &  T.  Lead.  Cas.  Eq.  1094;    Hagar  v.  Buck,  44  Vt. 

See  post,  107,  for  a  further  discussion  of  the  equitable  doctrine  concern- 

naltios  and  forfeitures. 

'«  1  Spence,  Eq.  Jur.  G01;  Langford  v.  Barnard,  Toth.  134  (decided  37  Eliz.): 

Emanuel  « Jollege  v.  Evans,  1  Ch.  R.  18.    See  post,  212,  for  a  further  statement 

<>f  tli.'  equitable  principles  relating  to  mortgages. 

Millikcn,  71  Me.  5(37;   Morris  v.  Nixon,  1  How.  118;  Russell 
thard,  12  Bow.  139;  Ex  parte  Udell,  10  Ch.  Div.  76. 
»  Flagg  v.  Maun,  2  Sumn.  533,  Fed.  Cas.  No.  4.S47. 


Ch.   3]  ENABLING    MAXIMS.  25 

of  equity  always  inquires  into  the  real  nature  and  objects  of  the 
transaction,  and  affords  relief  accordingly.19 

But  the  maxim  does  not  apply  alone  to  carry  out  the  true  intent 
of  the  parties  to  a  contract.  It  also  applies  to  frustrate  that  intent 
whenever  it  contravenes  the  laws  of  the  state,  and  the  parties  have 
adopted  some  specious  form  to  disguise  it.  In  such  cases,  equity 
will  strip  off  the  disguises,  and,  if  necessary  to  the  ends  of  justice, 
cancel  the  contract.20 

The  foregoing  illustrations  do  not,  by  any  means,  exhaust  the  ap- 
plications of  this  maxim;  nor  can  it  be  said  at  the  present  day  to 
be  confined  exclusively  to  courts  of  equity.  Notable  instances  of 
a  disregard  of  form  by  courts  of  law,  or  at  least  in  legal  actions, 
will  be  found  in  a  number  of  recent  quo  warranto  proceedings 
against  corporations  for  attempted  evasion  of  anti-trust  laws.21 

10.  Equity  looks  on  that  as  done  which  ought  to  be 
done. 

LIMITATION — The  maxim  does  not  apply  as  against 
the  intervening  rights  of  third  persons,  nor  in  favor 
of  one  who  has  no  right  to  have  a  thing  regarded 
as  done. 

This  principle  is  an  expansion  of  the  preceding  one.  Looking 
at  the  substance  of  things,  equity  will  place  one  having  an  equitable 
right  to  demand  the  performance  of  any  act  on  the  part  of  another 
in  the  same  situation,  and  clothe  him  with  the  same  interests  in 

is  Dodd  v.  Wilson,  4  Del.  Oh.  114,  409. 

20  Stockton  v.  Central  R.  Co.,  50  N.  J.  Eq.  52,  24  Atl.  964.  A  statute  of 
New  Jersey  prohibited  the  leasing  of  the  property  of  a  domestic  railroad  to 
a  foreign  corporation.  A  lease  was  executed  to  a  financially  irresponsible 
domestic  company,  and  the  lease  was  guarantied  by  a  wealthy  foreign  com- 
pany. The  court,  disregarding  the  mere  form,  held  the  transaction  to  be  a 
lease  to  the  foreign  company,  and  the  guaranty  to  be  a  mere  device  to  evade 
the  statute.  See,  also,  Pennsylvania  R.  Co.  v.  Com.  (Pa.  Sup.)  7  Atl.  368, 
where  another  device  to  evade  a  statute  prohibiting  the  lease  of  competing 
railroads  was  disregarded. 

2i  People  v.  Chicago  Gas  Trust  Co.,  130  111.  268,  22  N.  E.  798;  People  v. 
North  River  Sugar-Refining  Co.,  121  N.  Y.  582,  24  N.  E.  834;  State  v.  Standard 
Oil  Co.,  49  Ohio  St  137,  30  N.  E.  279. 


mi:    MAXIMS   OF   EQUITY.  [Ch.   3 

the  Bnbject-matter,  as  if  the  net  had  been  performed  at  the  proper 
time."     A  right  to  demand  the  performance  must  exist;  for  equity 
s  done  only  what  "ought"  to  have  been  done,  not  what 
•■illicit"  have  been  done.23 

The  doctrine  of  equitable  conversion  has  its  origin  in  this  maxim. 
Whenerer,  by  deed  or  will,  money  is  directed  to  be  converted  into 
land,  or  land  into  money,  a  court  of  equity,  acting  on  this  principle, 
will  consider  the  conversion  to  have  taken  place  at  the  time  the 
deed  or  will  takes  effect, — i.  e.  the  delivery  of  the  deed,  or  the  death 
of  testator;  and  the  personalty  is  transmissible  or  descendible 
as  real  estate,  and  the  realty  as  personal  property.24 

also,  acting  <>n  this  maxim,  it  is  the  settled  doctrine  in  equity 
that  the  vendee  in  an  executory  contract  for  the  sale  of  land  is  the 
eqnitable  owner  of  the  land,  while  the  vendor  has  merely  a  lien 
for  the  purchase  money;  and,  being  thus  in  equity  the  owner,  the 
vendee  must  bear  any  loss  which  may  happen,  and  is  entitled  to 
any  benefit  which  may  accrue,  to  the  estate  in  the  interim  between 
the  agreement  and  the  conveyance.25  On  this  principle,  also,  "an 
agreement  in  writing  to  give  a  mortgage,  or  a  mortgage  defectively 
executed,  or  an  imperfect  attempt  to  create  a  mortgage,  or  to  appro- 
priate specific  property  to  the  discharge  of  a  particular  debt,  will 
create  a  mortgage  in  equity,  or  a  specific  lien  on  the  property  hi- 
ded to  be  mortgaged."28 

Like  the  preceding  maxim,  the  one  now  under  consideration  also 

=2  Bee  Pom.  Eq.  Jur.  §  365;  Adams,  Eq.  p.  135. 
»B  Wheate,  1  W.  Bl.  123,  129. 

-*  Fletcher  v.  Ashburner,  1  Brown,  Ch.  497,  1  White  &  T.  Lead.  Cas.  Eq. 
826;  Craig  v.  Leslie,  3  Wheat  563,  567;  Dunscomb  v.  Dunscomb,  1  Johns. 
Ch.  508;  Teter  v.  Beverly,  10  Pet.  532;  Tazewell  v.  Smith's  Adm'r,  1  Rand. 
iVa.i  313,  320.     See  post,  67,  for  further  discussion  of  conversion. 

» Payne  v.  Meller,  6  Ves.  349;    Elevell  v.  Hussey,  2  Ball  &  B.  287;    Lewis 

v.  Smith.  9  N.  Y.  502,  510;    Brewer  v.  Herbert,  30  Md.  301;    Haughwout  v. 

Murphy.  22  N.  J.  Eq.  531. 

is  Curroy,  C.  J.,  in  Daggett  v.  Rankin,  31  Cal.  321,  326.     Where  a  mort- 

•  ovenants  to  insure  the  premises  for  the  benefit  of  the  mortgagee,  and 

Igor  or  some  other  person  procures  insurance  payable  to  the  mort- 

without  the  mortgagee's  knowledge,  and  with  no  intent  to  perform  the 

luity,  looking  on  that  as  done  which  ought  to  have  been,  will 

.ace  as  effected  under  the  agreement,  aud  will  give  the  mort- 


Ch.   3]  ENABLING    MAXIMS.  27 

applies  to  cases  of  fraud.  Not  only  does  equity  look  on  things 
agreed  or  directed  to  be  done  as  done,  but  also,  if  acts  have,  by 
fraud  of  the  parties,  been  prevented  from  being  done,  it  will  inter- 
fere and  treat  the  case  exactly  as  if  the  acts  had  been  done.27  "The 
principle  is  that  a  person  is  not  allowed  to  derive  any  advantage 
from  his  own  wrongdoing,  and  that,  in  order  to  prevent  this,  a 
court  of  equity  will  treat  him  as  having  done  that  which  ought  to 
have  been  done." 28 
Limitations. 

Equity  will  not  consider  that  as  done  which  ought  to  have  been 
done  if  to  do  so  would  injuriously  affect  third  persons  who  have 
contracted  with  reference  to  what  actually  has  been  done.29  Thus, 
equity  will  not  consider  a  transaction  as  a  pledge  when  there  is 
no  delivery  of  the  thing  pledged,  though  the  parties  intended  the 
transaction  as  such,  if  credit  has  been  given  to  the  pledgor  by  third 
persons,  which  might  not  have  been  given  if  he  had  not  remained 
in  possession  of  the  thing  pledged.30  Nor  does  the  maxim  apply  in 
favor  of  strangers  and  volunteers,  but  only  in  favor  of  the  parties  to 
the  transaction,  and  their  privies.31 

11.  Equity  imputes  an  intention  to  fulfill  an  obligation. 

Where  a  man  is  bound  to  do  an  act,  and  he  does  one  which  is 
capable  of  being  considered  as  done  in  fulfillment  of  his  obligation, 
it  will  be  presumed  that  he  acted  rightfully  in  the  performance  of 
his  duty,  and  not  in  violation  thereof.32     Thus,  where  a  man,  on 

gagee  his  equitable  lien  accordingly.  Ames  v.  Richardson,  29  Minn.  330,  13 
N.  W.  137;  Thomas  v.  Vonkpff,  G  Gill  &  J.  372;  Wheeler  v.  Insurance  Co., 
101  U.  S.  439;   Cromwell  v.  Brooklyn  Fire  Ins.  Co.,  44  N.  Y.  42. 

27  Story,  Eq.  Jur.  §  1S7;  Moore  v.  Crawford,  130  U.  S.  122,  128,  9  Sup  Ct. 
447. 

28  London,  C.  &  D.  R.  Co.  v.  Southeastern  R.  Co.  (1892)  1  Ch.  143. 

29  Vose  v.  Cowdrey,  49  N.  Y.  336;   Clabaugh  v.  Byerly,  7  Gill,  354. 
so  Casey  v.  Cavaroc,  96  U.  S.  467. 

3i  Snell,  Eq.  p.  10;  Jefferys  v.  Jefferys,  Craig  &  P.  138;  Chetwynd  v.  Mor- 
gan, 31  Ch.  Div.  596;  Redfield  v.  Parks,  132  U.  S.  239,  247,  248,  10  Sup.  Ct. 
83.  It  has  also  been  held  that  this  maxim  does  not  apply  to  errors  or  omis- 
sions in  the  record  of  judicial  proceedings.  King  v.  French,  2  Sawy.  441, 
Fed.  Cas.  No.  7,793. 

32  2  Spence,  Eq.  *204;   Snell,  Eq.  p.  45;  1  Pom.  Eq.  Jur.  §  420. 


THE    MAXIMS    OF    EQUITY.  [Ch.  3 


his  marriage,  covenants  to  settle  a  specified  quantity  of  land  on  his 
wife  as  jointure,  and  then  on  his  first  and  other  sons,  and,  after 
marriage,  acquires  property  of  the  specified  kind,  without  settling 
ime,  equity  will  regard  it  as  acquired  with  a  view  to  fulfill 
the  obligation,  and  the  first  son  cannot  claim  the  land  as  heir,  and 
insisl  on  the  investment  of  personalty  in  other  lands  in  fulfillment 
of  the  covenant88  So,  also,  where  a  trustee  empowered  to  invest 
trust  funds  takes  the  title  acquired  therewith  in  his  own  name, 
equity  will  presume  that  he  acted  in  the  performance  of  his  duty, 
and  that  the  property  belongs  to  the  beneficiaries  of  the  trust34 

In  a  rather  recent  leading  case  in  England,  the  principle  was 
carried  si  ill  a  step  further.  It  was  held  that  where  one  holding 
money  in  a  fiduciary  capacity  mingles  it  with  his  own,  and  draws 
mit  of  the  mixed  fund,  equity  will  presume  that  he  is  rightfully 
drawing  out  his  own  money,  rather  than  that  he  is  violating  his 
trust  by  drawing  out  the  trust  funds;  and  it  was  accordingly  held, 
i  ontrary  to  the  general  rule  applying  the  first  drawings  to  the  first 
deposits,  that  the  unexpended  balance  was  subject  to  a  charge  for 
the  entire  amount  of  the  trust  funds.35 

These  illustrations  show  that  the  maxim  now  under  considera- 
tion is  closely  analogous  to  the  preceding  one, — equity  regards  that 
as  done  which  ought  to  be  done. 

12.  Equity  acts  in  personam,  and  not  in  rem. 

QUALIFICATION— By  statute,  in  most  of  the 
states,  a  decree  of  a  court  of  equity  operates, 
-when  necessary,  as  a  transfer  of  title  to  real  es- 
tate; and,  -whenever  such  decree  merely  directs 
the  payment  of  money,  it  is  enforceable  by  ex- 
ecution against  the  property  of  the  unsuccessful 
party. 

»»  Wllcocks  v.  Wilcocks,  2  Vera.  558,  2  White  &  T.  Lead.Cas.  Eq.  *415;  Lech- 
mere  v.  Lechmere,  Cas.  L  Talb.  SO. 

3*2  Spence,  Eq.  *20-4;  1  Pom.  Eq.  Jur.  §  422;  Johnson  v.  Dougherty,  18  N. 
J.  Eq.  40ft.  . 

"In  re  Halletfs  Estate,  13  Ch.  Div.  GOG,  727,  745.  Followed  in  Central 
Nat  Bank  of  Baltimore  v.  Connecticut  Mut.  Life  Ins.  Co.,  104  U.  S.  54;  Englar 
v.  «  >ffutt,  TO  Md.  78,  8G,  1G  Atl.  4<J7. 


Ch.    3]  ENABLING    MAXIMS.  29 

In  the  absence  of  statutes  providing  otherwise,  the  decrees  of  a 
court  of  equity  are  to  be  regarded  not  so  much  as  decisions  affecting 
the  property  or  rights  in  dispute  as  in  the  light  of  directions  or 
commands,  positive  or  negative,  addressed  to  the  individual  party  or 
parties.36  The  only  method  for  their  enforcement  is  by  process  of 
contempt,  under  which  the  party  failing  to  obey  them  is  arrested 
and  imprisoned  until  he  yields  obedience,  or  purges  the  contempt, 
by  showing  that  the  disobedience  is  not  willful,  but  the  result  of 
inability  not  produced  by  his  own  fault  or  contumacy.37 

Several  important  results  follow  from  the  application  of  this 
maxim : 

1.  Acting  directly  on  the  conscience  and  person  of  the  individual, 
equity  will  not  permit  him  to  make  an  unconscientious  or  oppressive 
use  of  the  rules  of  common  or  statute  law.  Thus,  equity  will  enjoin 
an  individual  from  maintaining  unconscientious  proceedings  in  com- 
mon-law courts,  and  will  punish  disobedience  of  its  orders  by  im- 
prisonment.88 So,  one  who  enters  into  a  parol  contract  for  the  sale 
of  land,  on  the  faith  of  which  the  vendee  takes  possession,  and 
makes  expenditures  and  improvements,  will  be  compelled  in  equity 
to  execute  a  deed,  notwithstanding  the  statute  of  frauds.39  In 
such  a  case  equity  does  not  set  aside  the  statute,  but  imposes 
on  the  individual  seeking  to  use  it  as  an  instrument  of  fraud  a 
personal  obligation  to  hold  the  land  for  the  vendee's  benefit.40 

2.  By  virtue  of  its  control  over  the  persons  before  the  court,  equity 
may  compel  them  to  do,  or  restrain  them  from  doing,  acts  with 
reference  to  a  subject-matter  beyond  its  territorial  jurisdiction.41 

86  Smith,  Pr.  Eq.  p.  15.     For  the  origin  of  this  maxim,  see  ante,  5. 

si  Clements  v.  Tillman,  79  Ga.  451,  5  S.  E.  194. 

38  Earl  of  Oxford's  Case,  1  Ch.  R.  1,  2  White  &  T.  Lead.  Cas.  Eq.  1291; 
Marine  Tns.  Co.  v.  Hodgson,  7  Cranch,  332;  Maps  v.  Cooper,  39  N.  J.  Eq.  31G; 
Texas  &  P.  Ry.  Co.  v.  Kuteman,  54  Fed.  547.  The  injunction  operates  on 
the  parties,  and  not  on  the  court  of  law;  and  hence,  if  it  proceeds  with  the 
action,  its  judgment  is  not  void.  Piatt  v.  Woodruff,  61  N.  Y.  378.  See,  also, 
post,  291. 

89  Pom.  Eq.  Jur.  §  430.    See  post,  p.  2S0,  for  doctrine  of  part  performance. 

40  McCormick  v.  Grogan,  L.  R.  4  H.  L.  82,  97;  Greaves  v.  Topfield,  14  Ch. 
Div.  563,  577. 

4i  Adams  v.  Messiuger,  147  Mass.  185,  17  N.  E.  491.  In  this  case  an  agree- 
ment between  an  inventor  and  an  assignee  of  a  patent  binding  the  inventor 


;;0  THE  maxims  of  equity.  [Ch.  3 

Thus,  it  is  lii  inly  settled,  both  in  England  and  in  this  country,  that 
:i  court  of  equity  lias  power  to  restrain  a  person  within  its  juris- 
diction from  prosecuting  an  action  in  a  foreign  court42  So,  also. 
where  it  has  jurisdiction  of  the  person  of  a  defendant,  equity  may 
compel  or  restrain  ;i  conveyance  of  his  interest  in  real  or  personal 
property  abroad."  But  "the  claim  to  affect  foreign  lands  through 
the  person  of  the  party  must  be  strictly  limited  to  those  cases  in 
uhi,!  i  the  relief  decreed  can  be  entirely  obtained  through  the  par- 
ty's  personal  obedience."44  Thus,  equity  will  not  decree  partition 
of  land  situated  in  a  foreign  state  or  country,  simply  because  no 
power  could  be  given  to  commissioners  to  go  there,  and  take  the 
steps  necessary  for  carrying  out  the  decree.48  For  the  same  reason, 
it  lias  been  held  that  a  court  of  equity  has  no  power  to  decree  a 
foreclosure  sale  of  land  situated  wholly  in  another  state;46  but  a 
foreclosure  sale  of  an  entire  railroad  has  been  decreed,  though 
partly  without  the  jurisdiction  of  the  court.47 

tations. 
The  enforcement  of  a  decree  by  fine  and  imprisonment  was  found 
to  be  an  expensive  and  troublesome  method  of  compelling  a  trans- 
it patent  improvements  in  Canada  on  obtaining  such  a  patent  in  the  United 
smtcs  was  held  capable  of  specific  performance  in  Massachusetts. 

«  Lord  Portarlington  v.  Soulby  (1834)  3  Mylne  &  K.  104;  Mackintosh  v. 
Ogilvie,  3  Swanst.  365,  note;  Carron  Iron  Co.  v.  Maclaren  5  H.  L.  Cas.  41G, 
1 15;  Button  v.  Hutton,  40  N.  J.  Eq.  461,  2  Atl.  280;  Cole  v.  Cunningham,  133 
U.  S.  107,  10  Sup.  Ct.  269;  Dehon  v.  Foster,  4  Allen,  545,  550.  Injunction 
against  proceedings  in  another  state  to  attach  exempt  property.  Snook  v. 
Snetzer,  25  Ohio  St.  516;  Wilson  v.  Joseph,  107  Ind.  490,  8  N.  E.  616;  Allen 
v.  Buchanan  (Ala.)  11  South.  777. 

««  Penn.  v.  Lord  Baltimore,  1  Yes.  Sr.  444;  McQuerry  v.  Gilliland,  89  Ky. 
t: t.  12  s.  W.  1037;  Newton  v.  Bronson,  13  N.  Y.  587;  Bailey  v.  Ryder,  10  N 
V.  363;  Myres  v.  De  Mier,  4  Daly,  343;  on  appeal,  52  N.  Y.  647;  Potter  v. 
Holliater,  45  N.  J.  Eq.  508,  IS  Atl.  204;  Cloud  v.  Greasley,  125  111.  313,  17  N.  E. 
Bicks  v.  Turck,  72  Mich.  311,  40  N.  TV.  339.  Equity  has  jurisdiction  to 
administer  personal  estate  located  in  England,  though  testator  was  domiciled 
in  Scotland,  and  the  bulk  of  his  property  was  there,  and  the  will  had  been 
confirmed  in  Scotland.    Ewing  v.  Ewing,  L.  R.  9  App.  Cas.  34. 

MWestL  Priv.  Int.  Law,  64,  65. 

Lrtwright  v.  Pettus,  2  Ch.  Cas.  214;  Poindexter  v.  Burwell,  82  Va.  507. 

««  Farmers'  Loan  &  Trust  Co.  v.  Postal  Tel.  Co.,  55  Conn.  334,  11  Atl.  1S4. 

*i  Mullcr  v.  Dows,  04  U.  S.  444.    Decree  cannot  affect  title  to  lands  in  another 


€h.   3]  ENABLING    MAXIMS.  31 

fer  of  the  title  to  real  estate,  and  it  also  frequently  happened  that 
the  party  was  not  within  reach  of  the  process  of  the  court,  so  that 
he  could  be  attached.  Statutes  have  therefore  been  enacted  in 
many  of  the  states,  either  declaring  that  the  judgment  or  decree  of 
the  court  shall  operate  as  a  conveyance  on  the  failure  of  the  party 
to  obey,  or  authorizing  the  appointment  of  a  special  commissioner 
to  make  a  conveyance  on  such  failure.48  So,  also,  a  decree  for  the 
payment  of  money  is  enforced  by  execution  against  the  property  in 
many  states, — in  all  where  the  code  system  of  procedure  prevails. 
To  enforce  such  a  decree  by  contempt  proceedings  would  violate 
the  constitutional  provision  prohibiting  imprisonment  for  debt.49 
In  all  other  cases,  however,  decrees  are  still  enforced  by  attach- 
ment for  contempt,  especially  injunctions. 


13.  Equity  acts  specifically,  and  not  by  "way  of  compen- 
sation. 

Excepting  in  actions  of  ejectment  and  replevin,  the  only  remedy 
afforded  by  the  common  law  against  a  wrongdoer  is  by  money  com- 
pensation. The  manner  of  redress  in  equity,  however,  is  by  decree 
against  the  wrongdoer,  compelling  him  to  specifically  make  good 
his  default.  Thus,  equity  will  compel  a  contract  to  be  specifically 
performed,  instead  of  awarding  damages  for  its  breach.50  Where  a 
mistake  has  been  made  in  a  written  instrument,  or  the  instrument 
itself  has  been  lost  or  destroyed,  equity,  acting  specifically,  will 
place  the  parties  in  the  same  situation  as  though  the  mistake  or 
loss  had  not  occurred,  by  decreeing  a  reformation  in  the  one  case 
and  a  re-execution  in  the  other.51 

state.  Lindley  v.  O'Reilly,  50  N.  J.  Law,  636,  640,  15  Atl.  379;  Carpenter  v. 
Strange,  141  U.  S.  87,  106,  11  Sup.  Ct.  960.  Equity  will  not  entertain  jurisdic- 
tion of  action  to  recover  proceeds  of  sale  of  real  estate  situate  in  a  foreign 
country,  though  parties  reside  in  England,  where  title  to  property  is  in  dis- 
pute.   In  re  Hawthorne,  23  Ch.  Div.  745. 

48  Langdon  v.  Sherwood,  124  U.  S.  81,  8  Sup.  Ct.  429. 

49  Clements  v.  Tillman,  79  Ga.  453,  5  S.  E.  194. 
bo  See  post,  261. 

si  See  post,  314. 


32  THE    MAXIMS    OK    EQUITY.  [Ch.   3 

14.  Equality  is  equity. 

LIMITATION — In  the  distribution  of  equitable  as- 
sets, a  creditor,  having  a  lien  on  the  fund  either 
by  the  rules  of  the  common  law  or  by  virtue  of  a 
statute,  is  entitled  to  preference  over  creditors 
having  none. 

Acting  "ii  this  principle,  equity  leans  strongly  against  joint  ten- 
ancy and  iis  inseparable  incident  of  survivorship.82  This  appli- 
cation of  the  maxim  is  now  unimportant,  for  the  statutes  in  most  of 
the  states  declare  that  a  conveyance  to  two  or  more  shall  create  a 
tenancy  in  common,  and  not  a  joint  tenancy,  unless  the  contrary 
clearly  appears.  So,  also,  a  joint  liability  on  the  death  of  one  of 
the  obligees  would  be  enforced  at  law  only  against  the  survivor; 
but  equity,  acting  on  the  principle  that  all  the  obligors  intended  to 
bind  themselves  e  nially  for  the  payment  of  the  debt,  permitted  its 
enforcement  against  the  estate  of  the  deceased  debtor  if  the  sur- 
vivors were  insolvent.53  In  modern  times  the  maxim  is  chiefly  ap- 
plied to  cases  of  contribution  between  co-contractors,  sureties,  and 
others;"  to  cases  of  abatement  of  legacies  where  there  is  a  defi- 
ciency of  assets;  to  cases  of  apportionment  of  moneys  due  on  in- 
cumbrances among  different  purchasers  and  claimants  of  different 
parcels  <>f  land;65  and  to  cases  of  marshaling56  and  distribution  of 
equitable  assets.57  And  assets  will  be  treated  as  equitable  assets 
whenever  the  creditor  must  resort  to  the  aid  of  a  court  of  equity 
to  subject  them  to  his  claim.58 

. 

A  lien  created  by  the  common  law  or  by  statute  will  not  be  de- 
stroyed  in  equity  on  distributing  the  fund  on  which  it  is  impressed, 

■     Gilson,  1  White  &  T.  Load.  Cas.  Eq.  178. 
•  v.  Cole,  ">  N.  Y.  124;   Hunt  v.  Rousmanier,  8  Wheat.  211,  212;    Ex 
Eli  whill,  17  Yes.  514,  526,  527. 
well  v.  Failor,  1  Ohio  St.  327;   1  Story,  Eq.  Jur.  §  67f;  post,  252. 
-IT,. 
69  Post,  256. 

'•  Day  v.  Washburn,  24  How.  352  357;   Wabash  &  E.  Canal  Co.  v.  Beers,  2 
Black,  t  is:  Bank  of  Rochester  v.  Emerson,  10  Paij;e,  350. 

Louis  v.  O'Nell  Lumber  Co.,  114  Mo.  74,  21  S.  W.  484. 


Ch.   3]  RESTRICTIVE    MAXIMS.  33 

and  the  legal  priority  will  be  protected  and  preserved;  for  in  this 
respect  equity  follows  the  law.68 


RESTRICTIVE    MAXIMS. 

15.  Equity  follows  the  law: 

(a)  As  regards  legal  estates,  rights,  and  interests, 

equity  is  bound  by  the  rules  of  law. 

(b)  As  regards  equitable  estates,  rights,  and  inter- 

ests, equity  acts  in   analogy  to  the  rules    of 
law,  whenever  an  analogy  clearly  subsists. 

We  have  already  seen  that  equity  jurisprudence  has  its  origin  in 
the  failure  of  the  common  law  to  recognize  and  to  adequately  pro- 
tect certain  rights.60  Manifestly,  therefore,  the  maxim  now  under 
consideration  is  not  of  universal  application,  and  its  chief  use  has 
been  stated  to  be  the  anticipation  of  a  hasty  generalization  on  the 
part  of  the  student  that  equity  wantonly  disregards  the  provisions 
of  the  common  and  statute  law.61 

However,  legal  rights,  clearly  defined  and  established,  cannot  be 
changed  or  unsettled  by  a  court  of  equity  when  dealing  with  them ; 
and  in  such  instances  the  maxim  is  strictly  applicable.62  Thus,  in 
England  the  court  of  chancery  never  interfered  with  the  rule  of 
primogeniture;63  and  in  this  country  it  has  been  held  that  a  con- 
tract imposing  no  legal  obligation  cannot  be  enforced  in  equity.64 

Equitable  estates,  rights,  and  interests,  though  called  into  exist- 

69  Codwise  v.  Gelston,  10  Johns.  507 ;    Lidderdale  v.  Robinson,  12   Wheat. 
594;  Johnson  v.  Straus  (0.  C.  Va.)  4  Hughes,  621-639,  26  Fed.  57. 
eo  Ante,  3. 
ei  Smith,  Pr.  Eq.  p.  11. 

62  Magniac  v.  Thompson,  15  How.  281;  Mathews  v.  Mobile  Mut.  Ins.  Co., 
75  Ala.  85,  90. 

63  Snell,  Eq.  p.  17. 

64  Hedges  v.  Dixon  Co.,  150  U.  S.  182,  14  Sup.  Ct.  71;  Henderson  v.  Over- 
ton, 2  Yerg.  394.  Lord  Chancellor  Talbot  long  ago  refused  to  decree  against 
a  settled  rule  of  law,  saying:  "There  are  instances,  indeed,  in  which  a  court 
of  equity  gives  a  remedy  where  the  law  gives  none;  but  where  a  particular 
remedy  is  given  by  the  law,  and  that  remedy  bounded  and  circumscribed  by 
particular  rules,  it  would  be  very  improper  for  this  court  to  take  it  up  where 

eq.jur. — 3 


THE    MAXIMS    OF    EQUITY.  [Ch.   3 


ence  In  disregard  of  the  common  law,  nevertheless  partake  of  the 
same  rales  which  govern  corresponding  legal  estates,  rights,  and 
Interests."  Thus,  words  of  limitation  used  in  the  creation  of  exe- 
, -nt.il  trasts  will  be  given  the  same  construction  and  effect  as  if 
used  in  creating  legal  estates;60  equitable  estates  are  subject  to  the 
Bame  canons  of  descent  as  legal  estates,  excepting  dower  rights;67 
and  proceedings  in  equity  must  generally  be  brought  within  the 
Btatutory  period  of  limitations  prescribed  for  legal  proceedings  of 
a  similar  kiud.68  Further  than  this,  the  rules  governing  the  admis- 
sibility and  weight  of  evidence  and  the  construction  of  contracts 
are  the  Bame  at  law  and  in  equity.69 

the  liw  leaves  It.  and  to  extend  it  further  than  the  law  allows."  Heard  v. 
Stanford,  Gaa  t.  Talb.  173.  And  see,  also,  ante,  19,  maxim  "No  right  without 
a   remedy." 

The  rule  with  respect  to  equitable  estates  was  stated  as  follows  by  Sir 
Joseph  Jekyll,  in  Cowper  v.  Cowper,  2  P.  Wms.  720,  753:  "The  law  is  clear, 
and  rourts  of  equity  ought  to  follow  it  in  their  judgments  concerning  titles 
to  equitable  estate:  otherwise  great  uncertainty  and  confusion  would  come. 
And,  though  proceedings  in  equity  are  said  to  be  secundem  discretionem  boni 
v.'ii,  yet  when  it  is  asked,  'Vir  bonus  est  quis?'  the  answer  is  'Qui  consulta 
pa  tram,  qui  leges  juraque  servat'  (Who  is  the  good  man?  He  who  maintains 
the  opinions  of  his  predecessors,  and  the  laws  and  decisions.)  And  as  it  is 
said  in  Kooke's  Case,  5  Coke,  99b,  that  discretion  is  a  science  not  to  act  arbi- 
trarily according  to  men's  wills  and  private  affections,  so  the  discretion  which 

rated  here  is  to  be  governed  by  the  rules  of  law  and  equity,  which  are 
not  to  oppose,  but  each  in  its  turn  to  be  subservient  to,  the  other.  This  dis- 
cretion in  some  cases  follows  the  law  implicitly;    in  others,  assists  it,  and  ad- 

s  the  remedy;  in  others,  again,  it  relieves  against  the  abuse,  or  allays 
the  rigor  of  it;  but  in  no  case  does  it  contradict  or  overturn  the  grounds  or 
principles  thereof,  as  has  been  sometimes  ignorantly  imputed  to  this  court. 
That  is  a  discretionary  power,  which  neither  this  nor  any  other  court,  not  even 
the  highest,  acting  in  a  judicial  capacity,  is  by  the  constitution  intrusted  with." 
I>il>rill  v.  Carlisle,  48  Miss.  391.    See,  also,  post,  182,  "Interpretation  of 

wrper  v.  Cowper,  2  P.  Wms.  720;  Cross  v.  De  Valle,  1  Cliff.  (U.  S.)  282, 
Fed.  Cas.  No.  3,430. 

Uingshead  v.  Webster,  37  Ch.  Div.  G59;    Upham  v.  Wyman,  7  Allen, 

times,  however,   laches  of  complainant  will  cause  a  court  of 

equity  to  refuse  relief,  though  the  statute  of  limitations  has  not  run.    See  post, 

14. 

«»  In  re  T<  rry  and  White's  Contract,  l}2  Ch.  Div.  21.    In  this  case  Lord  Esher 

"I    doubt    myself    *    *    *    whether   there   are   any   principles    of   law 


Ch.   3]  RESTRICTIVE    MAXIMS.  o5 

16.  Where  the  equities  are  equal,  the  law  will  prevail. 

This  maxim  applies  whenever  both  parties  are  equally  entitled 
to  the  protection  of  a  court  of  equity,  and  one  of  them,  in  addition 
to  his  equitable  rights,  obtains  the  legal  title  to  the  subject-matter 
in  controversy.  In  such  a  case,  equity  does  not  aid  either  party, 
but  leaves  the  matter  to  depend  on  the  legal  title.70  Thus,  a  pur- 
chaser who  pays  a  valuable  consideration,  without  notice  of  a  prior 
outstanding  equitable  title,  stands  on  as  high  ground  in  equity  as 
the  holder  of  a  prior  equitable  title;  and,  if  he  obtains  the  legal 
title  before  he  has  notice  of  the  prior  equity,  the  legal  title  pre- 
vails.71 The  English  doctrine  of  tacking  is  another  illustration  of 
this  maxim,  viz.:      A  third  mortgagee,  who  advances  his  money 

which  were  differently  affirmed  in  the  old  court  of  equity  and  the  old  courts 
of  common  law.  These  courts  dealt  with  the  same  matters  for  the  purpose  of 
different  remedies,  and  therefore  were  necessarily  looking  at  the  same  matters 
from  different  points  of  view.  But  it  has  been  often  said  that  the  rules  of  evi- 
dence in  the  court  of  equity  were  different  from  those  in  the  courts  of  common 
law,  and  that  a  different  construction  was  put  upon  the  same  instrument: 
that  the  same  instruments  in  the  same  words  would  be  construed  in  one  way 
in  a  court  of  equity  and  in  another  way  in  a  court  of  common  law;  and  it 
has  been  said  that  that  which  in  the  one  court  would  have  been  deemed  to  be 
neither  immoral  or  dishonest  was  in  the  other  court  deemed  to  be  both  im- 
moral and  dishonest.  Ever  since  I  have  been  in  this  court  of  appeal  I  have 
been  trying  to  point  out,  not  the  differences,  but  the  resemblances  and  the 
identities,  between  law  and  equity;  and  I  now  protest  against  each  and  every 
one  of  those  alleged  doctrines.  I  protest  most  strongly  that  evidence  was  al- 
ways the  same  in  the  court  of  equity  as  in  the  courts  of  common  law  as  to  its 
effect  in  finding  out  the  truth.  What  an  absurdity  it  would  be  if  the  same 
evidence  to  prove  a  given  fact  before  one  of  two  tribunals  should  be  taken 
to  prove  it,  and  before  the  other  tribunal  should  be  taken  not  to  prove  it! 
The  idea  seems  to  me  to  be  monstrous;  and,  as  to  a  matter  being  called  im- 
moral and  dishonest  in  one  court  and  moral  and  honest  in  another,  if  the  law 
were  so,  I  should  consider  it  perfectly  hateful  that  a  man  should  be  branded 
with  fraud  or  with  dishonesty  according  to  the  court  in  which  his  adversary 
brought  the  suit.  It  seems  to  me  to  be  equally  absurd  and  ridiculous  to  sup- 
pose that  the  same  words,  in  the  same  contract,  should  be  held  to  have  one 
meaning  in  a  court  of  law,  and  another  in  a  court  of  equity." 

70  Thorndike  v.  Hunt,  3  De  Gex  &  J.  563;  Sturge  v.  Starr,  2  Mylne  &  K.  195; 
Boone  v.  Chiles,  10  Pet,  210;  Peiffer  v.  Bates,  45  N.  J.  Eq.  311,  19  Atl.  612. 

71  Crump  v.  Black,  6  Ired.  Eq.  321,  Jones  v.  Zollicoffer,  N.  C.  Term.  R.  212; 
Hoult  v.  Donahue,  21  W.  Va.  294,  300;    Carlisle  v.  Jumper,  81  Ky.  282;    Bas- 


36  THE    MAXIMS    OF    EQUITY.  [Oh.   3 

without  notice  of  the  second  mortgage,  has  an  equal  equity  with  the 
second  mortgagee,  and,  by  afterwards  purchasing  the  first  mort- 
the  third  mortgagee  obtains  the  legal  title,  and  is  thus  en- 
titled to  priority  over  the  second.72 

17.  Where  there  are  equal  equities,  the  first  in  order  of 
time  shall  prevail. 

The  meaning  of  this  maxim  is  that,  as  between  persons  having 
only  equitable  interests,  priority  in  time  gives  the  better  equity,  if 
their  Interests  are  in  all  other  respects  equal.  In  other  words,  in 
a  ,  nut,  st  between  persons  having  only  equitable  interests,  priority 
of  tin!'1  is  the  ground  of  preference  last  resorted  to;  i.  e.  a  court  of 
equity  will  not  prefer  the  one  to  the  other  on  the  mere  ground  of 
priority  of  time,  until  it  finds,  upon  an  examination  of  their  relative 
merits,  thai  there  is  no  other  sufficient  ground  of  preference  be- 
tween  them;  and  if  one  has,  on  other  grounds,  a  better  equity  than 
the  other,  priority  of  time  is  immaterial.73  Thus,  as  between  unre- 
corded  mortgages,  the  one  first  executed  is  entitled  to  priority,  since 
the  equities  of  the  mortgagees  are  in  other  respects  equal;74  but, 
as  against  a  voluntary  conveyance,  a  subsequent  purchaser  for  value 
without  notice  has  the  superior  equity,  and  is  entitled  to  priority.75 

18.  He  who  seeks  equity  must  do  equity. 

LIMITATION — The  maxim  does  not  apply  to  equi- 
ties other  than  those  growing*  out  of  the  transac- 
tion which  forms  the  subject  of  plaintiff's  suit, 
nor  to  equities  existing  in  favor  of  third  persons 
not  parties  to  the  suit. 

Nosworthy,  2  White  &  T.  Lead.  Cas.  Eq.  102;  Attorney  General  v.  Wil- 
kins.  17  Beav.  285.    S<  e  post,  80,  as  to  doctrine  of  notice. 
ii  Marsh  v.  Lee,  1  White  &  T.  Lead.  Cas.  Eq.  616,  2  Vent.  337;    Brace  v. 

less  "f  Marlborough,  2  P.  Wms.  491. 
:    Rice  •     Ri(  ■  .  2  Drew.  73;   Phillips  v.  Thillips,  4  De  Gex,  F.  &  J.  208,  215. 
rry  v.  Mutual  Ins.  Co.,  2  Johns.  Ch.  603.    See,  also,  Grimstone  v.  Carter, 
-■  .   121;    Ingram  v.  Morgan,  4  Humph.  (Tenn.)  66;   Heyder  v.  Excelsior 
Building  Loan  Ass'n,  42  N.  J.  Eq.  -in.-:.  407,  408,  8  Atl.  310. 

linson  v.  Cathcart,  2  Cranch,  C.  C.  590,  Fed.  Cas.  No.  11,94a    See,  also, 
95,  "Bona  Fide  Purchasers." 


Ch     3]  RESTRICTIVE    MAXIMS.  37 

The  maxim  now  under  consideration,  together  with  the  two  fol- 
lowing, "He  who  comes  into  equity  must  come  with  clean  hands," 
and  "Equity  aids  the  vigilant,"  illustrate  a  great  distinctive  and 
governing  principle  of  equity, — that  nothing  can  call  a  court  of 
equity  into  activity  but  conscience,  good  faith,  and  reasonable  dili- 
gence.76 The  meaning  of  the  maxim  is  that  one  invoking  the  aid 
of  a  court  of  conscience  will  not  be  granted  the  relief  to  which  he 
is  otherwise  entitled,  except  on  equitable  terms.77  These  terms 
will  be  imposed  as  the  price  of  the  decree  given  him;  and,  if  he  de- 
clines to  comply  with  them,  his  suit  will  be  dismissed.78 

In  the  earlier  history  of  equity  jurisprudence  the  wife's  equity 
to  a  settlement  afforded  the  principal  illustration  of  this  maxim. 
Whenever  a  husband  resorted  to  equity  to  reduce  his  wife's  personal 
property  to  possession,  relief  was  granted  him  only  on  condition  that 
he  make  a  fair  settlement  out  of  the  property  for  the  benefit  of  the 
wife  and  children.79  So,  also,  if  a  borrower  of  money  on  usurious 
interest  seeks  the  cancellation  of  the  instrument  which  evidences 
the  debt,  equity  will  grant  relief  only  on  condition  that  payment 
be  made  the  lender  of  what  is  bona  fide  due  him,80  unless  there  is  a 
statutory  prohibition  against  imposing  such  condition.81  And, 
generally,  a  contract  void  for  illegality,  or  incapable  of  enforcement 
even  in  equity,  will  not  be  canceled  unless  the  party  seeking  the 
relief  will  do  equity  by  paying  whatever  is  actually  due  thereon.82 

76  Snell.  Eq.  p.  39;   Lord  Camden  in  Smith  v.  Clay,  3  Brown,  Ch.  640,  note. 
•n  Kline  v.  Vogel,  90  Mo.  239,  245,  1  S.  W.  733,  and  2  S.  W.  408. 

78  Alexander  v.  Merrick,  121  111.  606,  614,  13  N.  E.  190. 

79  Sturgis  v.  Champneys,  5  Mylne  &  C.  105. 

so  Fanning  v.  Dunham,  5  Johns.  Ch.  122,  142-144;  Noble  v.  Walker,  32  Ala. 
450;  Rogers  v.  Torbut,  58  Ala.  523;  Whatley  v.  Barker,  79  Ga.  790,  4  S.  E.  387. 

si  Bissell  v.  Kellogg,  60  Barb.  617;  Scott  v.  Austin,  36  Minn.  460,  32  N.  W. 
89,  864. 

82  Deans  v.  Robertson,  64  Miss.  195,  1  South  1S9;  Tuthill  v.  Morris,  81  N.  Y. 
94,  100.  Some  of  the  cases  seem  to  hold  that  the  equities  which  the  maxim 
supposes  must  be  capable  of  enforcement  in  an  independent  action  either  at 
law  or  in  equity.  Finch  v.  Finch,  10  Ohio  St.  501,  508;  Otis  v.  Gregory,  111 
Ind.  504,  509,  13  N.  E.  39;  Hanson  v.  Keating,  4  Hare,  1.  But  certainly  a 
contract  tainted  with  usury  or  any  other  illegality  is  not  capable  of  judicial 
enforcement  in  an  independent  action;  and  yet  the  courts  have  always  re- 
quired payment  of  what  is  equitably  due  before  decreeing  cancellation.  See 
Pom.  Eq.  Jur.  §  386. 


Till;    MAXIMS    OF    KQUITY.  [Ch.  3 

One  who  comes  into  equity  to  have  a  void  judicial  sale  of  his  land 
Bel  aside  as  a  cloud  on  his  title  must  do  equity  by  tendering  what  is 
justly  due  on  the  debt  for  which  the  sale  was  made.83  The  doctrine 
of  equitable  estoppel  has  its  origin  in  this  maxim;  and  whenever 
the  owner  of  land  stands  by  and  knowingly  suffers  a  third  person, 
who  is  ignoranl  of  his  title,  to  expend  money  on  the  estate  in  im- 
provements, equity  will  grant  him  relief  only  on  condition  that  he 
compensate  the  third  person  for  such  expenditures.81 

iatiana. 
The  maxim  is  applied  only  where  the  adverse  equity  to  be  se- 
cured  or  awarded  grows  out  of  the  very  controversy  before  the  court, 
or  out  of  such  transactions  as  the  record  shows  to  be  a  part  of  its 
history,  or  where  it  is  so  connected  with  the  cause  in  litigation  as 
in  he  presented  in  the  pleadings  and  proofs,  with  full  opportunity 
afforded  to  the  party  thus  recriminated  to  explain  or  refute  the 
charges.88  Furthermore,  the  maxim  is  confined  exclusively  to  cases 
in  which  there  is  an  equity  between  the  parties;  an  equity  in  favor 
of  a  third  person  against  plaintiff  can  never  be  available,  under 
this  maxim,  to  the  defendant.88 

19.  He   who   comes   into    equity  must   come   with  clean 
hands. 

LIMITATIONS— (a)  The  maxim  does  not  apply  to  mis- 
conduct of  complainant  in  no  wise  affecting 
the  equitable  relations  between  the  parties,  and 
not  arising  out  of  the  transaction  as  to  which 
the  relief  is  sought. 

«3  Loney  v.  Courtnay,  24  Neb.  580,  39  N.  W.  616;   Blackburn  v.  Clarke,  85 
T<  nil.  506,  3  S.  W.  505;   McQuddy  v.  Ware,  20  Wall.  14-20. 

:i.  Eq.  p.  40;  Pratt  v.  Thornton,  28  Me.  355;   Dilworth  v.  Sinderling,  1 

Bin.  (Pa.)  488.    For  other  illustrations  of  this  maxim,  see  Yard  v.  Pacific  Mut. 

.,  10  N.  J.  Eq.  480;   Jones  v.  Roberts,  6  Call  (Va.)  187.    Where  specific 

inance  is  sought,  the  court  will  require  the  party  who  seeks  it  to  show 

formance  or  readiness  to  perform  on  his  part,  or  a  default  on  the  other 

Bide,  which  utterly  excuses  him.    McNeil  v.  Magee,  5  Mason,  244,  Fed.  Cas. 

-  915. 

■  k  v.  Johnson,  40  N.  Y.  015;    Mahoney  v.  Bostwick,  96  Cal.  53, 
I  Jolvin  v.  Hartwell,  5  Clark  &  F.  484. 
laud  v.  Rives,  1  Rand.  (Va.)  282. 


Cli.    oj  RESTRICTIVE    MAXIMS.  39 

(b)  Though  both  parties  have  been  engaged  in  a 
fraudulent  or  illegal  transaction,  equitable  re- 
lief will  be  granted  complainant  if  public  pol- 
icy is  advanced  thereby,  or  if  he  -was  not  in 
equal  -wrong  with  defendant. 

This  maxim,  or,  as  it  is  otherwise  expressed,  "He  that  hath  com- 
mitted iniquity  shall  not  have  equity,"  is  the  equitable  application 
of  a  fundamental  principle  pervading  the  entire  body  of  the  law  — 
that  no  one  shall  be  permitted  to  profit  by  his  own  fraud,  or  take 
advantage  of  his  own  wrong,  or  to  found  any  claim  in  his  own  in- 
iquity, or  to  acquire  property  by  his  own  crime.87 

The  meaning  of  the  maxim  is  that  a  court  of  equity  will  not  lend 
its  active  aid  to  one  who  has  been  guilty  of  unconscientious  or  op- 
pressive conduct,  or  who  has  been  in  equal  wrong  with  defendant, 
touching  the  transaction  as  to  which  the  relief  is  sought;  but  in 
such  cases  the  court  will  leave  the  parties  where  it  finds  them,  with- 
out interfering  in  behalf  of  either.88 

The  maxim  applies  not  only  to  fraudulent  and  illegal  transac- 
tions, but  to  any  unrighteous,  unconscientious,  or  oppressive  conduct 
by  one  seeking  equitable  interference  in  his  own  behalf.  Thus,  a 
label  of  a  trades-union  which  on  its  face  shows  a  purpose  to  stigma- 
tize all  craftsmen  not  members  of  the  union,  irrespective  of  their 
character,  will  not  be  protected  from  infringement  by  a  court  of 

STRig-gs  v.  Palmer,  115  N.  Y.  506,  22  N.  E.  188.  In  this  case  it  was  held 
that  a  beneficiary  under  a  will  who  murders  the  testator  to  prevent  a  revoca- 
tion, and  to  obtain  a  speedy  enjoyment  of  the  property,  will  not  be  permitted 
to  take  either  under  the  will  or  as  heir  or  next  of  kin,  though  there  is  no  law 
declaring  a  forfeiture;  approving  New  York  Mut.  Life  Ins.  Co.  v.  Armstrong. 
117  U.  S.  591,  G  Sup.  Ct.  877,  holding  that  the  beneficiary  under  a  policy  of 
life  insurance  who  murders  the  insured  cannot  recover  on  the  policy,  and  dis- 
approving Owens  v.  Owens,  100  N.  C.  240,  6  S.  E.  794,  holding  that  a  woman 
who  murders  her  husband  may  claim  dower  in  his  land.  In  Shellenberger  v. 
Ransom  (Neb.)  59  N.  W.  935,  the  doctrine  of  Riggs  v.  Palmer,  is  rejected;  and 
it  is  held  that  a  murder  perpetrated  for  the  purpose  of  inheriting  the  estate  of 
the  murdered  person  will  not  justify  a  court  in  adding  an  exception  to  the 
statute  of  descent  so  as  to  divest  the  murderer  of  the  fruits  of  his  crime. 

ss  Kahn  v.  Walton,  46  Ohio  St.  195,  20  N.  E.  203;  Atwood  v.  Fisk,  101  Mass. 
363;  Harrington  v.  Bigelow,  11  Paige,  349;  Weakley  v.  Watkins,  7  Humph 
(Tenn.)  356. 


40  Tin:  maxims  of  equity.  [Ch.  3 

equity."*  A  contracl  which  is  unequal,  oppressive,  or  improvident 
will  not  be  specifically  enforced,00  nor  a  nuisance  abated  at  suit 
He  maintaining  (he  same  nuisance.01 
qnenl  application  of  this  maxim  is  made  to  the  case  of  a  com- 
plainant guilty  of  fraud  in  respect  to  the  matter  in  litigation.92 
Tims,  a  grantor  in  a  conveyance  executed  to  defraud  creditors  can- 
not maintain  a  suit  in  equity  for  its  cancellation;93  and  a  trade- 
mark containing  false  representations  calculated  to  deceive  the 
I- nl. lie  will  noi  be  protected  in  equity.94 

So,  also,  wh.re  both  parties  have  been  engaged  in  an  illegal 
transaction,  neither  is,  in  general,  entitled  to  the  aid  of  a  court  of 
equity  as  against  the  other,  who  has  obtained  the  fruits  of  the 
crime,  it  matters  not  whether  the  transaction  be  merely  prohibited 
by  sMi  ute,  or  whether  it  is  intrinsically  immoral  or  vicious.95  Thus, 
all  instruments  executed  to  give  effect  to  an  illegal  agreement  are 
tainted  with  the  illegality,  and  will  neither  be  canceled  nor  en- 

89  MeVey  v.  Brenrlel,  144  Pa.  St.  235,  22  Atl.  912.  This  case  is  justly  criti- 
cised in  Cohn  v.  People,  149  111.  486,  37  N.  E.  GO,  on  the  ground  that  the  label 
in  question  does  not  stigmatize  non-union  labor. 

»o Friend  v.  Lamb.  152  Pa.  St.  529,  25  Atl.  577;  Bagwell  v.  Bagwell,  72  Ga. 
92;  Mansfield  v.  Sherman,  81  Me.  3G5,  367,  17  Atl.  300;  Willard  v.  Tayloe,  8 
Wall.  557,  567.    See,  also,  post,  273. 

9i  Cassady  v.  Cavenor,  37  Iowa,  300;  Medford  v.  Levy,  31  W.  Va.  649,  8  S.  E. 
302.  Equity  does  not  aid  oppressive  conduct,  Hunter  v.  Carroll,  64  N.  H.  572, 15 
Atl.  17;  nor  give  complainant  relief  against  his  own  vice  and  folly,  Rozell  v. 
Bedding,  59  Mich.  331,  26  N.  W.  498;  or  from  the  consequence  of  a  risk  vol- 
untarily assumed,  Patterson  v.  Brown,  32  N.  Y.  81. 

and  of  infant,  Overton  v  Banister,  3  Hare,  503;  Nelson  v.  Stocker,  4 
De  Gex  &  J.  458,  464.  See,  generally,  Wheeler  v.  Sage,  1  Wall.  529;  Pearce 
v.  Ware,  94  Mich.  321,  53  N.  W.  1106;  Scranton  Electric  Light  &  Heat  Co.  v. 
Scranton  Illuminating  Heat  &  Power  Co.,  122  Pa.  St.  154,  15  Atl.  446;  Bleak- 
ly "s  Appeal,  66  Fa.  St.  187;  Walker  v.  Hill,  22  N.  J.  Eq.  513;  Musselman  v. 
Kent,  33  Ind.  452. 

Denl  v.  Ferguson,  132  U.  S.  50,  10  Sup.  Ct.  13;  Freeman  v.  Sedwick,  6 
(Jill  (Mil.)  28.  But  a  debtor  may  abandon  his  fraudulent  purpose,  and  may 
maintain  suit  to  compel  a  reconveyance  for  the  benefit  of  his  creditors.  Curll 
v.  Emery,  148  Mass.  32,  18  N.  E.  574. 

9*  Joseph  v.  Macowsky,  96  Cal.  518,  31  Pac.  914;  Prince  Manuf'g  Co.  v. 
Prime's  Metallic  Paint  Co.,  135  N.  Y.  24,  31  N.  E.  990. 

1;  Qg  a  v.  Bigelow,  11  Paige.  349;  Gordon  Tp.  v.  Shoemaker,  12  Ohio, 
St.   624;    Sample  v.   Barnes,   14  How.   70.    Gambling  transactions,   Smith  v. 


Cb.   3]  RESTRICTIVE    MAXIMS.  41 

forced  in  equity;98  nor  can  a  participant  in  an  illegal  transaction 
compel  his  confederate  to  account  for  property  which  has  come  into 
the  latter's  possession  as  a  result  of  the  crime.87 

Limitations. 

1.  The  maxim  applies  only  to  the  conduct  of  the  complainant  in 
respect  to  the  particular  transaction  under  consideration,  for  the 
court  will  not  go  outside  of  the  case  to  examine  his  conduct  in  other 
matters,  or  to  question  his  character  for  fair  dealing.08  Thus,  a 
violation  of  a  statute  with  respect  to  platting  land  within  city  limits 
does  not  prevent  the  owner  from  resorting  to  equity  to  enjoin  the 
flooding  of  the  property  by  a  private  person ; "  fraud  in  obtaining 
a  patent  of  public  lands  from  the  federal  government  does  not  pre- 
vent the  reformation  of  a  deed  whereby  one  of  the  participants  in 
the  fraud,  for  an  independent  valuable  consideration,  conveys  his 
interest  in  the  land  to  his  confederate;100  and  the  fact  that  plain- 
tiff coerced  his  wife  into  signing  a  mortgage  given  to  cover  a  bal- 
ance found  due  defendant  on  the  settlement  of  an  account  is  no 
ground  for  refusing  to  open  the  settlement  for  defendant's  fraudu- 
lent imposition.101  So,  also,  the  fact  that  the  parties  have  been 
engaged  in  illegal  transactions,  which  have  been  fully  completed, 
will  not  prevent  one  of  them  from  resorting  to  equity  for  relief  as 
to  subsequent  independent  or  collateral  contracts  or  transactions, 
in  which  the  original  illegal  transaction  forms  no  part  of  the  con- 
sideration.102    Thus,  a  partner's  sale  of  his  interest  in  the  firm  to 

Kammerer,  152  Pa.  St.  98,  25  Atl.  165;  Kahn  v.  Walton,  46  Ohio  St.  195,  20 
N.  E.  203;  Atwood  v.  Fisk,  101  Mass.  363;  Weakley  v.  Watkins,  7  Humph. 
(T'enn.)  356. 

ss  Blasdel  v.  Fowle,  120  Mass.  447. 

»7  Snell  v.  Dwight,  120  Mass.  9,  and  cases  there  cited. 

98  Dering  v.  Earl  of  Winchelsea,  1  Cox,  318;  Lewis'  Appeal,  67  Pa.  St.  153, 
166;  Langdon  v.  Templeton,  66  Vt  173,  28  Atl.  866;  Edison  Electric  Light 
Co.  v.  Sawyer-Man  Electric  Co.,  3  C.  C.  A.  605,  53  Fed.  592. 

99  Sylvester  v.  Jerome  (Colo.  Sup.)  34  Pac.  760. 
ioo  Foster  v.  Winchester,  92  Ala.  497,  9  South.  83. 
ioi  Bateman  v.  Fargason,  2  Flip.  660,  4  Fed.  32. 

102  Armstrong  v.  Toler,  11  Wheat.  258,  271;  Tenant  v.  Elliott,  1  Bos.  &  P. 
3;  Thomson  v.  Thomson,  7  Ves.  470;  Sharp  v.  Taylor,  2  Phil.  Ch.  801.  In 
Sykes  v.  Beadon,  11  Ch.  Div.  170,  193,  194,  Jessel,  M.  R.,  says:  "You  cannot 
ask  the  aid  of  a  court  of  equity  to  carry  out  an  illegal  contract;    but  in  cases 


42  THE    MAXIMS    OF    EQUITY.  [Ch.   3 

his  copartner  will  be  set  aside  in  equity  for  the  latter^  fraudulent 
misrepresentation  as  to  the  value  of  the  firm  assets,  though  they 
were  acquired  iu  illegal  transactions.10' 

2.  Again,  when  the  parties  to  a  fraudulent  or  illegal  transaction 
are  doI  equally  in  the  wrong,  equity  will  not  refuse  relief  to  the 
more  excusable  of  the  two,  especially  if  public  policy  is  considered 
as  advanced  thereby.104  Thus,  a  borrower  who  has  joined  in  violat- 
ing the  usury  law  will,  nevertheless,  be  relieved  from  his  contract 
in  equity,  on  the  theory  that  the  law  was  enacted  to  prevent  op- 
3ion,  and  that  public  policy  will  be  advanced  by  assisting  the 
oppressed  party  who  is  not  in  pari  delicto.105  So,  also,  a  conveyance 
to  defraud  creditors  will  be  set  aside  if  the  grantee  occupied  confi- 
dential relations  towards  the  grantor,  and  exerted  undue  influence 
in  procuring  it.108 

20.  Equity  aids  the  vigilant,  not  those  who  slumber  on 
their  rights. 

LIMITATION — Legal  disabilities,  such,  as  infancy,  cov- 
erture, and  insanity,  excuse  delay;  nor  is  the  sov- 
ereign power  chargeable  with  laches  in  respect  to 
public  rights  and  interests. 

No  rule  of  law  is  better  settled  than  that  a  court  of  equity  will 
discourage  stale  demands,  for  the  peace  of  society,  by  refusing  to 

where  the  contract  is  actually  at  an  end,  or  is  put  an  end  to,  the  court  will 
interfere  to  prevent  those  who  have,  under  the  illegal  contract,  obtained  money 
belonging  to  other  persons,  on  representation  that  the  contract  was  legal,  from 
keeping  that  money.  *  *  *  It  does  not  follow  that  you  cannot,  in  some 
recover  money  paid  over  to  third  persons  in  pursuance  of  the  contract; 
and  it  does  not  follow  that  you  cannot,  in  other  cases,  obtain,  even  from  the 
parties  to  the  contract,  moneys  which  they  have  become  possessed  of  by  repre- 
sentations that  the  contract  was  legal,  and  which  belong  to  the  persons  who 
wish  to  recover  them." 

103  Brooks  v.  Martin,  2  Wall.  TO. 

io*  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660,  679;   Tracy  v.  Talmage,  14  N. 
Y.  162;   Duvall  v.  Wellman,  124  N.  Y.  158,  26  N.  E.  343. 

os  Adams.  Eq.  p.  175;    Peters  v.   Mortimer,  4  Edw.   Ch.  279;    Fanning  v. 
Dunham.  5  Johns.  Ch.  122,  142-144. 

08  Ford  v.  Harrington,  16  N.  Y.  285;  Freelove  v.  Cole,  41  Barb.  318,  affirmed 
•11  N.  Y.  619. 


Ch.   3]  RESTRICTIVE    MA.XIMS.  43 

interfere  where  there  have  been  gross  laches  in  prosecuting  rights, 
or  where  long  acquiescence  in  the  assertion  of  adverse  rights  has 
occurred.107  The  rule  is  peculiarly  applicable  when  the  difficulty 
of  doing  entire  justice  arises  through  the  death  of  the  principal 
participants  in  the  transaction  complained  of,  or  of  the  witness  or 
witnesses,  or  by  reason  of  the  original  transactions  having  become 
so  obscured  by  time  as  to  render  the  ascertainment  of  the  exact 
facts  impossible.108  Each  case  must  necessarily  be  governed  by 
its  own  circumstances ; 109  since,  though  the  lapse  of  a  few  years 
may  be  sufficient  to  defeat  the  action  in  one  case,  a  longer  period 
may  be  held  requisite  in  another,  dependent  upon  the  situation  of 
the  parties,  the  extent  of  their  knowledge,  or  means  of  informa- 
tion,110 great  changes  in  values,111  the  want  of  probable  grounds  for 
the  imputation  of  intentional  fraud,  the  destruction  of  specific  testi- 
mony, the  absence  of  any  reasonable  impediment  or  hindrance  to 
the  assertion  of  alleged  rights,112  the  intervening  rights  of  third 
persons,113  and  the  nature  of  the  relief  sought.114 

Whenever  the  statute  of  limitations  applies  exclusively  to  legal 
actions,  courts  of  equity  are,  of  course,  not  strictly  bound  by  it; 
but  they  generally  require  that  analogous  equitable  actions  be 
brought  within  the  statutory  period,  on  the  principle  that  equity 

107  Hammond  v.  Hopkins,  143  U.  S.  224,  12  Sup.  Ct  418;  Akins  v.  Hill,  7  Ga. 
573,  577;  March  v.  Whitmore,  21  Wall.  17S;  Castner  v.  Walrod,  83  111.  171; 
McDonnel  v.  White,  11  H.  L.  Cas.  570;  Catlin  v.  Green,  120  N.  Y.  441,  24  N. 
B.  941. 

los  Harrison  v.  Gibson,  23  Grat.  212;  Lawrence  v.  Rokes,  61  Me.  38;  Hatcher 
v.  Hall,  77  Va.  578;   Barnes  v.  Taylor,  27  N.  J.  Eq.  259. 

109  Reynolds  v.  Sumner,  126  111.  58,  18  N.  E.  334;  Bell  v.  Hudson,  73  Cal. 
285,  14  Pac.  791. 

no  Lindsay  Petroleum  Co.  v.  Hurd,  L.  R.  5  P.  C.  221;  Boswell  v.  Coaks, 
27  Ch.  Div.  424,  457;  Bausman  v.  Kelley,  38  Minn.  197,  36  N.  W.  333. 

in  Bliss  v.  Pritchard,  67  Mo.  187;  Allen  v.  Allen,  47  Mich.  79,  10  N.  W. 
113;  Pratt  v.  California  Min.  Co.,  24  Fed.  869;  Twin-Lick  Oil  Co.  v.  Marbury, 
91  U.  S.  587. 

112  Hammond  v.  Hopkins,  143  U.  S.  224,  250,  12  Sup.  Ct.  418. 

us  Ridgway  v.  Newstead,  2  Giff.  492;  Lehmann  v.  McArthur,  3  Ch.  App. 
496. 

ii4  Length  of  time  sufficient  to  preclude  rescission  may  not  bar  reformation 
of  contract    Koons  v.  Blanton,  129  Ind.  383,  27  N.  E.  334. 


.w.1"      In  many  of  the  -  he  time  within  which 

e  brought  robed  by  rtatnte;  but  it 

hit  fact  vay  the  right  of  the 

•   ground  of  laches, 
period  of  limitations.11* 

t$. 

-ui  jurii  act  in  hit  own  behalf,  neither 

a  married   woman   under  t;  ility  ol  I 

Me  with  lacl  5  0,  with  one  under  the  di-:- 

_  .         ■  ef  to  enforce  a 
a  public  interest  is  not  barred  by  the  la 

■:         L  121  I  27. 

Ala.   402;    Whalej  v.   Elliot,   1    A.   KL    M 

■    lid.  277. 

r.  I  M  Co.,  46  M'l. 

',:   U.  S.  v.  Beebe,  127  U.  & 
.    r;.  EL,  113  Q.  8.  12  r,*   80ft 


Ch.   4]  EQUITABLE    ESTOPPEL.  45- 


CHAPTER  IV. 

THE    DOCTRINES    OF    EQUITY-ESTOPPEL,    ELECTION,    SATISFAC- 
TION, PERFORMANCE,  AND  CONVERSION. 

21  Equitable  Estoppel. 

22  Essential   Elements. 

23.  Effect  of  Estoppel. 

24.  Election. 

25.  Conditions  Requiring  Election. 

20.  Election  between  Dower  and  Testamentary  Gift 

27.  Mode  of  Election. 

28.  Ascertainment  of  Values. 

29-31.  Election  by  Persons  under  Disability. 

32.  Effect  of  Election. 

33.  Satisfaction. 

34-35.  Admissibility  of  Evidence  as  to  Intention. 

36.  Classification. 

37.  Satisfaction  of  Debt  by  Legacy,  etc. 

38.  Double  Provisions  for  Child  by  Parent  or  Person  In  Loco  Paren- 

tis. 

39.  Ademption. 

40.  Person  in  Loco  Parentis. 

41.  Presumption  in  Favor  of  Ademption. 

42.  Covenant  to  Make  Settlement  Followed  by  Testamentary  Provision. 

43.  Performance. 

44.  Conversion. 

45.  Words  Sufficient  to  Work  a  Conversion. 
40.          Time  of  Conversion. 

47.  Effect  of  Conversion. 

4S-49.  Total   or   Partial    Failure   of   Purposes   for    which    Conversion   Is 

Directed. 

50.  Double  Conversion. 

51.  Reconversion. 


EQUITABLE   ESTOPPEL. 

21.  "Where  one  voluntarily,  by  his  words  or  conduct, 
causes  another  to  believe  the  existence  of  a  certain  state 
of  things,  and  induces  him  to  act  on  that  belief,  so  as  to 
alter  his  own  previous  position  for  the  worse,  the  former 


46  THE    DOCTRINES    OF    EQUITY.  [Ch.  4 

is   concluded  from    averring   against  the  latter  a  different 
state  of  things  as  existing  at  the  same  time.1 

Tin's  branch  of  the  law  of  estoppel  originated  in  the  English  court 
of  chancery.8  It  was  definitely  adopted  in  England  as  a  common-law 
doctrine  in  the  leading  case  of  Pickard  v.  Sears;3  and  it  is  now  ad- 
ministered almost  as  freely  by  courts  of  law  as  by  courts  of  equity.4 
The  doctrine  rests  on  the  broad  ground  of  public  policy  and  good 
faith,  and  is  interposed  to  guard  against  fraud  and  prevent  injustice.5 
Its  vital  principle  is  that  he  who,  by  his  language  or  conduct,  leads 
another  to  do  what  he  would  otherwise  not  have  done,  shall  not  sub- 
ject such  person  to  loss  or  injury  by  disappointing  the  expectations 
on  which  he  acted.6    It  is  always  applied  so  as  to  promote  the  ends 

i  Pickard  v.  Sears,  G  Add.  &  E.  469;  Freeman  v.  Cooke,  2  Exch.  654. 
"Where  one  voluntarily,  by  acts  or  declarations,  represents  a  certain  state  of 
facts  to  exist,  and  thereby  procures  a  change  of  conduct  In  another,  he  cannot 
afterwards  be  heard  to  assert  a  contrary  state  of  facts,  if  injury  results  to,  or 
fraud  is  perpetrated  thereby  upon,  the  party  who  has  acted  relying  upon  the 
truth  of  his  representations."  Gillett  v.  Wiley,  126  El.  310,  323,  19  N.  E.  287. 
"Equitable  estoppel  is  the  effect  of  the  voluntary  conduct  of  a  party  whereby 
he  is  absolutely  precluded,  both  at  law  and  in  equity,  from  asserting  rights 
which  might,  perhaps,  have  otherwise  existed,  either  of  property,  of  contract, 
or  of  remedy,  as  against  another  person,  who  has  in  good  faith  relied  upon  such 
conduct,  and  has  been  led  thereby  to  change  his  position  for  the  worse,  and 
who  on  his  part  acquires  some  corresponding  right,  either  of  property,  of  con- 
tract, or  of  remedy."    2  Pom.  Eq.  Jur.  §  804. 

2  In  Keate  v.  Phillips,  18  Ch.  Div.  560,  577,  Vice  Chancellor  Bacon  said: 
"The  common-law  doctrine  of  estoppel  was,  as  I  have  said,  a  device  which  the 
common-law  courts  resorted  to  at  a  very  early  period  to  strengthen  and 
lengthen  their  arm,  and,  not  venturing  to  exercise  an  equitable  jurisdiction  over 
the  subject  before  them,  they  did  convert  their  own  special  pleading  tactics 
into  an  instrument  by  which  they  could  obtain  an  end  which  the  court  of  chan- 
cery,  without  any  foreign  assistance,  did  at  all  times,  and  I  hope  will  at  all 
times,  put  in  force  in  order  to  do  justice."  See,  also,  as  to  origin  of  equitable 
ipel,  Born  v.  Cole,  51  N.  H.  2S7. 
Adol.  &  E.  169,  decided  in  1837. 

*  It  has  been  held  by  some  courts  that  the  doctrine  of  equitable  estoppel  can- 
not be  invoked  in  legal  actions  involving  the  title  to  real  estate.  Hayes  v. 
Livingston,  34  Mich.  384;  St  Louis  Nat  Stock  Yards  v.  Wiggins  Ferry  Co., 
102  111.  51  l. 

o  Shipley  v.  Fox,  09  Md.  572,  579;    16  Atl.  275. 

•  Dickerson  v.  Colgrove,  100  U.  S.  578,  580. 


Cll.   4]  EQUITABLE    ESTOPPEL.  47 

of  justice,  is  available  only  for  protection,  and  cannot  be  used  as  a 
weapon  of  assault7 

SAME— ESSENTIAL    ELEMENTS. 

22.  The  elements  essential  to  create  an  equitable  estop- 
pel are: 

(a)  Words  or  conduct  by  the  party  against  whom  the 

estoppel  is  alleged,  amounting  to  misrepresenta- 
tion or  concealment  of  material  facts.8 

The  words  relied  on  to  work  an  estoppel  may  be  either  written  or 
spoken;  and  misleading  silence,  where  there  is  a  duty  to  speak,  is 
as  effectual  to  create  an  estoppel  as  a  direct  representation.  He 
who  is  silent  when  it  is  his  duty  to  speak  will  not  be  permitted  to 
speak  when  it  is  his  duty  to  be  silent.9  The  representation  must, 
however,  be  certain,  and  of  a  material  character,  and  such  as  would 
naturally  lead  an  ordinarily  prudent  man  to  act  on  it.10  As  a  rule, 
it  must  relate  to  a  matter  of  fact,  and  not  of  law  or  opinion,11  and 
must  relate  to  a  past  or  present,  as  distinguished  from  a  future, 
state  of  things.12 

(b)  The    party  against  ■whom  the   estoppel  is   alleged 

must  have  knowledge,  actual  or  imputed,  of  the 
untruthfulness  of  the  representations  made  by 
him.13 

t  Dickerson  v.  Colgrove,  100  U.  S.  578,  580;  Seton  v.  Lafone,  19  Q.  B.  Div. 
68,  70. 

»  Stevens  v.  Dennett,  51  N.  H.  333,  334;  Pittsburg  v.  Danforth,  56  N.  H.  278. 

9  Swayze  v.  Carter,  41  N.  J.  Eq.  231,  233,  3  Atl.  706;  Morgan  v.  Railroad  Co., 
96  U.  S.  716,  720;  Vreeland  v.  Ellsworth,  71  Iowa,  347,  32  N.  W.  374;  Leather 
Manuf  rs'  Nat.  Bank  v.  Morgan,  117  U.  S.  96,  108,  6  Sup.  Ct.  657;  Gill  v.  Har- 
din, 48  Ark.  409,  3  S.  W.  519;  State  v.  Wertzell,  62  Wis.  188,  22  N.  W.  150; 
Gregg  v.  Wells,  10  Adol.  &  E.  90. 

"Blodgett  v.  Perry,  97  Mo.  263,  273,  10  S.  W.  891;  Howe  Mach.  Co.  v. 
Farrington,  82  N.  Y.  121;  The  Belle  of  the  Sea,  20  Wall.  429. 

"Whitwell  v.  Winslow,  134  Mass.  346,  347;  Chatfield  v.  Simonson,  92  N.  Y. 
209,  218;   So  ward  v.  Johnston,  65  Mo.  102. 

12  Jackson  v.  Allen,  120  Mass.  79;  White  v.  Ashton,  51  N.  Y.  280;  Starry  v. 
Korab,  65  Iowa,  267,  21  N.  W.  600;  Insurance  Co.  v.  Mo  wry,  96  U.  S.  544,  547. 

is  Bigelow,  Estop,  p.  609;  2  Pom.  Eq.  Jur.  §  809. 


4S  THE    DOCTRINES    OF    EQUITY.  [Ch.   4 

If  one  knowingly  makes  a  false  representation  in  reference  to  a 
mat.  rial  matter,  the  ease  is  clear.  If  he  recklessly  makes  a  rep- 
resentation without  knowing  whether  it  be  true  or  false,  he  is 
equally  bound  by  it;  for  the  affirmation  of  what  one  does  not  know 
or  believe  to  be  true  is,  equally,  in  morals  and  in  law,  as  unjustifiable 
as  t  he  affirmation  of  what  is  known  to  be  positively  false.1*  So,  also, 
u  misrepresentation,  innocently  made,  and  with  a  belief  in  its  truth 
will  work  an  estoppel  where  the  party  making  it  was  in  a  position 
in  which  he  ought  to  have  known  the  actual  facts.15 

(c)  The  party  relying  on  the  estoppel  must  show  that 

he  was  ignorant  of  the  facts,  and  that  such  ig- 
norance was  not  chargeable  to  his  neglect.16 

One  who  has  knowledge  of  the  facts,  or  being  put  on  inquiry,  and 
having  the  means  of  knowledge  within  his  reach,  fails  to  use  reason- 
able diligence  to  ascertain  the  truth,  cannot  claim  an  estoppel; 17  nor 
can  he  claim  an  estoppel  if  he  knew  the  facts  when  he  acted  on  the 
representation,  though  he  was  ignorant  of  them  when  the  represen- 
tation was  made.18 

(d)  The  party  estopped  must  intend,  or  be  in  a  position 

to  reasonably  anticipate,  that  his  conduct  or  rep- 
resentation will  be  acted  on  by  the  party  assert- 
ing the  estoppel,  or  the  public  generally. 

The  party  against  whom  the  estoppel  is  alleged  need  not  intend 
to  deceive  or  mislead;  it  is  sufficient  if  the  act  or  declaration  was 
calculated  to  and  did  in  fact  mislead  another  acting  in  good  faith 
ami  with   reasonable  diligence.19      The  use  of  the  term  "fraud"  is 

"  1  Story,  Eq.  Jur.  §  193;   Preston  v.  Mann,  25  Conn.  118,  129. 

is  Irving  Nat.  Bank  v.  Alley,  79  N.  Y.  536,  540;  Horn  v.  Cole,  51  N.  H.  287. 

ia  Bigelow,  Estop,  p.  G29,  2  Pom.  Eq.  Jur.  §  810. 

"  steel  v.  St.  Louis  Smelting  &  Refining  Co.,  106  U.  S.  447,  1  Sup.  Ct.  3S9; 
Bobbins  v.  Potter,  98  Mass.  532;  Odlin  v.  Gove,  41  N.  H.  465;  Lux  v.  Haggin, 
255,  266,  10  Pac.  674. 

is  Freeman  v.  Cooke,  2  Exch.  654. 

io  Blair  v.  Wait,  <;<j  N.  Y.  11.",;  Standard  Paper  Co.  v.  Guenther,  67  Wis.  106, 
30  N.  W.  Lias;    Stevens  v.  Ludlum,  46  Minn.  160,  48  N.  W.  771;   Trustees,  etc., 


Ch.  4]  EQUITABLE  ESTOPPEL.  49 

unnecessary,  and  even  improper,  in  connection  with  equitable  estop- 
pel, unless  applied  to  the  effort  of  the  party  estopped  to  repudiate 
his  conduct,  and  to  assert  a  right  or  claim  in  contravention  thereof.20 
While,  as  a  general  rule,  the  party  making  the  representation  must 
intend  that  it  be  acted  on  by  the  party  to  whom  it  is  made,21  an 
estoppel  may  arise  where  the  conduct  of  one  is  such  that  another 
may  reasonably  infer  the  existence  of  a  certain  state  of  facts,  whether 
the  party  intends  that  he  should  or  not.22  A  familiar  example 
is  the  estoppel  of  the  owner  of  chattels  from  asserting  title  thereto 
as  against  a  bona  fide  purchaser  from  one  whom  he  has  clothed  with 
the  apparent  title,  though  without  any  intention  that  the  pur- 
chaser should  act  on  such  appearance.23  If  the  representation, 
whether  by  words  or  conduct,  instead  of  being  confined  to  a  par- 
ticular person,  or  to  a  particular  class  of  persons,  was  actually  in- 
tended to  be,  or  must  reasonably  be  presumed  to  have  been  in- 
tended, for  the  public  generally,  any  one  of  the  public  who  acted  in 
reliance  on  it  may  assert  the  estoppel.24 

(e)  The  representation  or  conduct  must  have  been 
acted  on  promptly  and  to  his  prejudice  by  him 
■who  asserts  the  estoppel. 

The  cue  asserting  the  estoppel  must  have  acted  on  his  adversary's 
representation  or  conduct  with  reasonable  promptness.  "His  first 
acts  after  listening  to  the  words  or  witnessing  the  conduct  of  his 
adversary  in  regard  to  the  matter  involved  is  the  test  of  his  belief 
in  the  existence  of  the  thing  represented,  and  indicates  that  belief; 
for,  unless  he  is  induced  by  those  words  or  that  conduct  to  alter  his 
position,  his  adversary  cannot  be  concluded  from  averring  a  different 

of  Town  of  Brookhaven  v.  Smith,  118  N.  Y.  634,  23  N.  E.  1002;  Leather  Man- 
uf'rs'  Nat.  Bank  v.  Morgan,  117  U.  S.  96,  6  Sup.  Ct.  657;  Continental  Nat. 
Bank  v.  National  Bank  of  the  Commonwealth,  50  N.  Y.  575. 

20  Galbraith  v.  Lunsford,  87  Tenn.  89,  105,  9  S.  W.  3G5. 

2i  Zuchtmann  v.  Roberts,  109  Mass.  53;  Plumer  v.  Lord,  9  Allen,  455;  Hodge 
v.  Ludlum,  45  Minn.  290,  47  N.  W.  805. 

22  Horn  v.  Cole,  51  N.  H.  287;  Cornish  v.  Abington,  4  Hurl.  &  N.  549;  Moore 
v.  Metropolitan  Nat.  Bank,  55  N.  Y.  41;   Combes  v.  Chandler,  33  Ohio  St.  178. 

23  McNeil  v.  Tenth  Nat.  Bank,  46  N.  Y.  325. 

24  McLean  v.  Dow,  42  Wis.  610. 

EQ.JUK.— 4 


THE    DOCTRIxNES    OF    EQUITY.  [Ch.   4 

stair  of  things."88  Not  only  must  he  act  promptly,  but  he  must 
so  change  hi*  position  that  he  will  be  injured  if  the  representation 
be  withdrawn,  or  the  conduct  repudiated.28  The  injury  need  not, 
however,  result  from  affirmative  action  on  his  part,  but  it  is  enough 
that  he  was  induced  by  the  other  party  to  refrain  from  obtaining 
a  particular  benefit,  which  he  would  otherwise  have  been  reasonably 
sine  of  acquiring.87 

SAME— EFFECT    OF    ESTOPPEL. 

23.  The  party  entitled  to  the  benefit  of  an  estoppel  has 
the  same  rights  against  the  one  estopped  as  if  the  repre- 
sentation had  been  true,  and  his  right  of  recovery  is  not 
limited  to  the  consideration  actually  paid,  or  the  actual 
damages  sustained. 

For  example,  the  assignee  of  mortgages,  who  purchased  in  reliance 
on  the  mortgagor's  representation  that  they  are  valid,  is  entitled  to 
recover  the  full  amount  of  the  mortgages,  and  not  merely  the  sum 
paid  by  him  therefor.28  So,  also,  where  one  has  estopped  himself 
from  denying  the  genuineness  of  his  indorsement  on  a  note,  the 
holder  is  entitled  to  recover  from  him  the  whole  amount  due  thereon; 
and  it  is  immaterial  whether  his  actual  damage  in  relying  on  the 
'■■•presentation  is  more  or  less.28 

ELECTION. 

24.  Where  property  is  given  by  deed  or  will,  and  by 
the  same  instrument  the  donor  assumes  to  transfer  the 
donee's  property  to  a  third  person,  the  donee  must  elect 
to  take  either: 

Andrews  v.  Aetna  Life  Ins.  Co.,  85  N.  Y.  334. 
*«  Nell  v.  Dayton.  43  Minn.  242,  45  N.  W.  229;    Railroad  Co.  v.  Dubois,  12 
Wall.  47;   Warder  v.  Baldwin,  51  Wis.  450,  8  N.  W.  257;    East  v.  Dolihite,  72 
N.  C.  562;  Adler  v.  Pin,  80  Ala.  351,  354,  355. 

linental  Nat  Bank  v.  National  Bank  of  the  Commonwealth,  50  N.  Y. 
575,  585;    Weinstein  v.  National  Bank,  69  Tex.  38,  6  S.  W.  171. 
2»  Grissler  v.  Powers,  81  N.  Y.  57. 

29  Pall  River  Bank  v.  Buffinton,  97  Mass.  498.  See,  however,  contra,  Camp- 
bell v.  Nichols,  33  N.  J.  Law,  81. 


Ch.   4]  ELECTION.  51 

(a)  Under  the  instrument,  in  which  case  he  must  carry 

out  all  its  provisions,  and  he  must  transfer  his 
property  to  the  person  named  therein. 

(b)  Against  the  instrument,  in  which  case  he  forfeits 

so  much  of  the  gift  intended  for  him  as  is  neces- 
sary to  compensate  the  person  disappointed  by 
his  election,  and  he  will  be  entitled  to  any  sur- 
plus remaining  after  such  compensation. 

This  doctrine  rests  on  the  maxim  that  he  who  asks  equity  must 
do  it,  and  means  that,  where  two  inconsistent  rights  are  presented 
to  the  choice  of  a  party  by  a  person  who  manifests  a  clear  intention 
that  he  shall  not  enjoy  both,  he  must  accept  or  reject  one  or  the 
other;  in  other  words,  that  one  cannot  take  a  benefit  under  an  in- 
strument, and  then  repudiate  that  instrument.30  Thus,  it  has  been 
held  in  a  recent  case  that  where  testator  devises  land  to  his  wife, 
and  bequeathes  to  others  the  proceeds  of  a  policy  of  insurance  which 
was  payable  to  her,  and  she  accepts  the  devise,  she  thereby  relin- 
quishes her  right  under  the  policy.31  In  such  a  case  as  this — where 
the  donee  elects  to  take  under  the  instrument,  and  to  part  with  his 
own  property — no  further  question  can  arise;  but  where  he  elects 
to  take  against  the  instrument,  and  to  retain  his  own  property, 
the  question  arises,  what  becomes  of  the  gift  intended  for  him? 
It  was  held  in  some  of  the  earlier  cases  that  the  donee  forfeited  the 
entire  gift  by  such  election ; 32  but  it  is  now  established  that  com- 
pensation, not  forfeiture,  is  the  object  of  the  doctrine,  and  that  all 
that  is  required  from  the  donee  is  to  make  or  allow  compensation 
to  the  person  who  is  disappointed  by  the  election.33     Illustration 

so  Peters  v.  Bain,  133  U.  S.  670,  10  Sup.  Ct.  354;  Penn  v.  Guggenheimer, 
76  Va.  839;  Hyde  v.  Baldwin.  17  Pick.  303:  Havens  v.  Sackett,  15  N.  Y.  365. 

aiHuhlien  v.  Huhlien  (Ky.)  8  S.  W.  260.  See,  also,  Noys  v.  Mordaunt,  1 
White  &  T.  Lead.  Cas.  Eq.  337;  Wilbanks  v.  Wilbanks,  18  I1L  17;  Gorham  v. 
Dodge,  122  111.  52S,  14  N.  E.  44;  McQuerry  v  Gilliland,  89  Ky.  434,  12  S.  W. 
1037;  Brown  v.  Ward,  103  N.  C.  173,  9  S.  E.  300. 

32  Cowper  v.  Scott,  3  P.  Wms.  124;  Cookes  v.  Hellier,  1  Ves.  Sr.  235. 

ss  Streatfield  v.  Streatfleld,  Cas.  t.  Talb.  176;  Gretton  v.  Ha  ward,  1  Swanst. 
433;  Rogers  v.  Jones,  3  Ch.  Div.  6S8;  Cauffman  v.  Cauffrnan,  17  Serg.  &  R. 
16,  24,  25;  Roe  v.  Roe,  21  N.  J.  Eq.  253;  Brown  v.  Brown,  42  Minn.  270,  44 
N.  W.  250;   Colver  v.  Wood  (Tenn.)  25  S.  W.  963. 


Till:    DOCTRINES    OF    EQUITY.  [Ch.   4 

will  perhaps  make  this  clearer.  Suppose  a  legacy  of  $20,000  is 
given  i<»  A.,  and  by  the  same  will  testator  undertakes  to  devise  to 
B.  land  worth  $10,000,  owned  by  A.  A.  elects  against  the  will,  and 
retains  his  land.  By  so  doing,  he  does  not  forfeit  the  entire  legacy 
of  |20,000,  bnt  may  receive  $10,000  thereof;  the  remaining  $10,000 
being  paid  to  B.,  as  a  compensation  for  his  disappointment  in  not 
receiving  the  estate  intended  for  him. 

SAME— CONDITIONS    REQUIRING   ELECTION. 

25.  To  make  a  case  requiring  an  election,  the  following 
things  are  necessary: 

(a)  The  instrument  itself  must  show  a  clear  intention 

on  the  part  of  the  donor  to  dispose  of  property- 
belonging  to  the  person  required  to  elect. 

(b)  A  gift  of  property  actually  and  absolutely  owned 

by  the  donor  to  the  person  required  to  elect. 

Intention  to  Dispose  of  Donee's  Property. 

Xo  case  for  an  election  arises  unless  the  donor  attempts  to  dispose 
of  property  belonging  to  the  person  required  to  elect.  Thus,  where 
a  parent,  after  making  and  publishing  his  will,  conveys  to  his  daugh- 
ter,  to  whom  he  had  devised  land  in  his  will,  a  portion  of  the  land 
be  had  devised  to  his  son,  a  case  requiring  an  election  by  the  daughter 
is  not  made  out,  since  the  parent  was  dealing  entirely  with  his  own 
property,  and  made  no  pretense  of  dealing  with  the  property  of  an- 
other.34 

Further  than  this,  the  donor's  intention  to  dispose  of  property  not 
his  own  must  clearly  appear.35     It  need  not,  however,  be  expressly  de- 

•  Hattersley  v.  Bissett  (N.  J.  Ch.)  25  Atl.  Rep.  332.  Same  principle,  Long 
v.  Wier,  2  Kich.  Eq.  2S3;  Thompson  v.  Thompson,  2  Strobh.48.  So,  also,  when 
by  will  two  distinct  gifts  are  made  to  the  same  person,  one  of  which  is  oner- 
oid the  other  beneficial,  the  donee  is  not  required  to  elect  whether  he 
will  accept  both  or  neither.  He  may,  if  he  pleases,  accept  the  benefit  and  re- 
ject the  burden.    Andrew  v.  Trinity  Hall,  9  Ves.  525.    But,  if  the  onerous  and 

rrester  v.  Cotton,  1  Eden,  531;   Dillon  v.  Parker,  1  Swanst.  359;    Pick- 
v.  Rodger,  5  Ch.  Div.  1G3,  166;   Havens  v.  Sackett,  15  N.  Y.  365;  Penn 
v.  Guggenheimer,  To'  Ya.  8o9. 


Ch.  4  J  ELECTION.  53 

clared,  but  may  be  gathered  from  the  whole  instrument.36  Ordi- 
narily, such  intention  is  clear  whenever  the  donor  has  no  interest 
whatever  in  the  property  he  attempts  to  dispose;  but,  where  he  has 
a  partial  interest  in  the  property  dealt  with,  it  will  often  be  doubtful 
whether  his  language  is  designed  to  refer  to  the  whole  property, 
and  so  to  affect  the  interest  of  another  person,  or  whether  it  is  to  be 
confined  to  his  own  partial  interest  only.  In  such  a  case  of  partial 
ownership,  the  presumption  is  that  he  intended  to  give  only  that 
which  he  might  properly  dispose  of,  and  nothing  more;  and  this 
presumption  will  always  prevail,  unless  by  demonstration  plain,  or 
necessary  implication,  the  contrary  appears.37  Thus,  if  in  making  a 
devise,  testator  uses  general  expressions,  such  as  "all  my  lands," 
"all  my  estate,"  no  case  of  election  arises,  for  it  does  not  plainly 
appear  that  he  meant  to  dispose  of  anything  but  what  was  strictly 
his  own ; 38  but  where,  owning  merely  a  partial  or  undivided  inter- 
est in  an  estate,  testator  devises  the  entire  corpus  therein  specifically, 
a  case  for  an  election  is  made.39 

Again,  the  donor's  intention  must  appear  from  the  instrument 
itself,  and  cannot  be  proved  by  evidence  dehors  the  instrument.40 
When,  however,  the  donor's  intention  to  dispose  of  property  not 
his  own  does  clearly  appear,  it  is  immaterial  whether  he  knew  the 
property  to  be  not  his  own  or  erroneously  conceived  it  to  be  so ; 41 

the  beneficial  property  are  included  in  the  same  gift,  the  acceptance  of  the 
burden  is  prima  facie  deemed  to  be  a  condition  of  the  gift,  and  the  donee  must 
elect  to  take  the  whole  gift  or  none  of  it.  Guthrie  v.  Walrond,  22  Ch.  Div.  573; 
In  re  Hotchkys,  32  Ch.  Div.  40S;  Warren  v.  Rudall,  1  Johns.  &  H.  13. 

36  Penn  v.  Guggenheimer,  76  Va.  S39. 

37  Pickersgill  v.  Rodger,  5  Ch.  Div.  163,  170;  Maddison  v.  Chapman,  1 
Johns.  &  H.  470;   Penn  v.  Guggenheimer,  76  Va.  839. 

sswintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650;  Maxwell  v.  Maxwell,  2 
De  Gex,  M.  &  G.  705,  713;  Dummer  v.  Pitcher,  2  Mylne  &  K.  262;  Sherman 
v.  Lewis,  44  Minn.  107,  46  N.  W.  318;  Haack  v.  Weicken,  118  N.  Y.  67,  23  N. 
E.  133. 

39  Penn  v.  Guggenheimer,  76  Va.  839  (devise  of  "home  place"  in  which  testa- 
tor owned  only  an  undivided  interest);  Shuttleworth  v.  Greaves,  4  Mylne  & 
C.  35. 

to  Sherman  v.  Lewis,  44  Minn.  107,  46  N.  W.  318;  Blake  v.  Bunbury,  1  Ves. 
Jr.  523;  Clementson  v.  Gandy,  1  Keen,  309. 

4i.Thellusson  v.  Woodford,  13  Ves.  221;  Coutts  v.  Acworth,  L.  R.  9  Eq.  519; 
Griffith  v.  Scott,  26  Ch.  Div.  358. 


54 


THE    DOCTRINKS    OF    EQUITY.  [Ch.  4 


and,  when  the  gift  is  made  by  will,  it  is  also  immaterial  whether  the 
donee's  interest  in  the  property  attempted  to  be  disposed  is  vested 
contingent  a1  the  time  of  testator's  death,  provided  it  becomes 
.;  bi   or    the  distribution  of  the  estate.42 
There  is  another  class  of  cases  varying  in  their  facts  from  the 
ling,  bu1  likewise  depending  on  the  donor's  intention.    A  tes- 
tator dies  leaving  property  in  several  states.     His  will  is  valid  in  the 
state  where  executed,  but  void  in  so  far  as  it  undertakes  to  devise 
i..  a  stranger  land  situated  in  a  foreign  state,  because  not  executed 
in  conformity  with  its  laws.     In  these  rases  the  question  arises,  must 
the  heirs,  who  are  entitled  to  take  such  land  as  intestate  property, 
elect  between  it  and  A'alid  legacies  bequeathed  to  them  by  the  will, 
,,r  may  they  take  both?    Applying-  the  foregoing  rules,  it  has  been 
held  that  if  the  will  disposes  of  testator's  property  in  general  terms; 
without  any  specific  reference  to  the  land  in  the  foreign  state,  the 
presumption  is  that  testator  intended  to  dispose  of  only  such  prop- 
erty as  would  pass  by  the  particular  will  in  question,  and  that,  con- 
a!h\  no  election  is  required;43  but  if  there  is  a  specific  devise 
of  the  foreign  land,  either  expressly  or  by  necessary  implication,  an 
election  is  required.44 

to  Person  Required  to  Elect. 
A-  the  doctrine  of  election  depends  upon  compensation,  it  will  not 
be  applicable  unless  there  be  an  available  fund  from  which  compen- 
sation can  be  made;  that  is,  there  will  be  no  ground  for  election  un- 
ite donor  bestows  some  property  absolutely  and  actually  his 
own  on  the  person  required  to  elect.45  Thus,  where  testator  devises 
to  <nie  of  his  daughters  land  owned  by  the  husband  of  another 
daughter,  and  then  devises  another  tract  to  this  last-named  daughter, 
tin-  husband  cannot  be  required  to  elect,  because  nothing  has  been 
devised  to  him.46 

«  McQueen  v.  McQueen,  2  Jones,  Eq.  1G. 

<3  Maxwell  v.  Maxwell,  2  De  Gex,  M.  &  G.  705;  Johnson  v.  Telford,  1  Russ. 
&  M.  244;  Allen  v.  Anderson,  5  Hare,  1G3;  Maxwell  v.  Hyslop,  L.  R.  4  Eq. 
-I "7;  Jones  v.  Jones,  8  Gill  (Md.)  197. 

ran  Dyke's  Appeal,  GO  Pa.  St  481,  489;    Brodie  v.  Barry,  2  Ves.  &  B. 
127;   OrreU  v.  Orrell,  G  Ch.  App.  302;  Dewar  v.  Maitland,  L.  R.  2  Eq.  S34. 
«  Sn.  11.  Eq.  p.  240. 

onett  v.  Harper,  36  W.  Va.  54G,  15  S.  E.  143.    So,  also,  where  a  per- 
son, having  u  power  to  appoint  among  children,  makes  an  appointment  con- 


Ch.  4]  ELECTION.  55 

SAME— ELECTION  BETWEEN  DOWER  AND  TESTAMENTARY 

GIFT. 

26.  In  the  absence  of  statute,  a  widow  is  not  put  to  her 
election  between  her  dower  and  a  testamentary  disposi- 
tion in  her  favor  in  her  husband's  will,  unless  the  testator 
has  declared  the  same  to  be  in  lieu  of  dower,  either  by- 
express  words  or  necessary  implication;  and  it  is  not  suffi- 
cient that  the  will  renders  it  doubtful  whether  he  intended 
that  she  should  have  her  dower  in  addition  to  the  pro- 
vision.47 

At  common  law,  express  words  were  necessary  to  require  an  elec- 
tion by  the  widow  between  her  dower  and  a  testamentary  gift  from 
her  husband;48  the  presumption  being  that  the  gift  was  intended 
in  addition  to  her  dower.  In  equity,  however,  the  rule  was  as  stated 
in  the  black-letter  text;  that  is,  the  intention  to  require  an  election 
might  appear  by  implication.  At  the  present  time,  both  in  England 
and  in  this  country,  statutes  very  generally  enact  that  any  provision 
in  the  husband's  will  is  to  be  deemed  in  lieu  of  dower,  requiring  the 
widow  to  elect.49 

SAME— MODE    OF   ELECTION. 

27.  An  election  may  be  either: 

(a)  Express;  such  an  election  being  some  positive 
declaration  by  the  person  required  to  elect 
showing  the  intention  and  the  fact  of  elec- 
tion.50 

trary  to  the  terms  of  the  power,  a  child  entitled  in  default  of  appointment  was 
allowed  to  set  it  aside,  notwithstanding  that  a  share  had,  by  the  same  instru- 
ment, been  appointed  to  him.  He  was  not  required  to  elect,  because  there 
was  no  free  disposable  property  of  the  appointor  given  to  him  which  could 
be  laid  hold  of  to  compensate  the  person  disappointed.  Bristow  v.  Warde,  2 
Ves.  Jr.  33G.  For  a  somewhat  similar  case,  see  In  re  Fowler's  Trust,  27  Beav. 
362. 

47  Church  v.  Bull,  2  Denio,  430;   Adsit  v.  Adsit,  2  Johns.  Ch.  448;   Birming- 
ham v.  Kirwan,  2  Schoales  &  L.  452;  Hall  v.  Hill,  1  Dru.  &  War  94,  103. 

48  Gosling  v.  Warburton,  Cro.  Eliz.  12S;    Nottley  v.  Palmer,  2  Drew.  93. 

49  Smith,  Pr.  Eq.  p.  444;  1  Pom.  Eq.  Jur.  §  494. 
eo  1  Pom.  Eq.  Jur.  §  514. 


5G  THE    DOCTRINES    OF    EQUITY.  [Ch.   4 

(b)  Implied;  an  election  being  implied  when  the 
person  required  to  elect,  with  full  knowledge 
of  his  rights  and  of  the  facts,  so  deals  with 
the  properties  as  to  evince  an  intention  to 
take  one  and  reject  the  other. 

1.  An  instance  of  an  express  election  is  where  the  party  required 
to  elect  executes  a  written  instrument  declaring  which  one  of  the 
two  properties  lie  will  take,  and  in  such  a  case  no  further  question 
can  arise. 

2.  The  question  as  to  what  is  an  implied  election  is  one  often 
difficult  of  solution.  It  may  be  inferred  from  the  conduct  of  the 
party,  his  acts,  his  omissions,  and  his  mode  of  dealing  with  the  prop- 
erty. Unequivocal  acts  of  ownership,  with  knowledge  of  the  right 
to  elect,  and  not  through  a  mistake  with  respect  to  the  value  of  the 
estate,  will  generally  be  deemed  binding; 51  but  it  is  otherwise  where 
there  is  ignorance  of  material  facts  or  of  the  right  to  elect.52  Lapse 
of  lime,  though  not  of  itself  conclusive,  yet,  when  connected  with 
circumstances  of  enjoyment,  may  be  decisive  on  the  question  of 
election;63  and,  where  a  specific  time  has  been  limited  for  election, 
a  person  who  does  not  elect  within  such  time  will  be  deemed  to  have 
elected  against  the  instrument.54  Ability  to  restore  others  to  the 
same  position  as  if  there  had  been  no  election  is  one  of  the  indices  of 
election.55 

SAME— ASCERTAINMENT    OF   VALUES. 

28.  Persons  required  to  elect  are  entitled  to  ascertain 
the  respective  values  of  their  own  property  and  of  that 
conferred  on  them,  and  may  commence  an  action  to  have 
all  requisite  accounts  taken.56 

It  follows  from  this  rule  that  an  election  made  under  a  mistake 
of  facts  as  to  the  value  of  the  property  or  its  condition  is  not  binding, 
and  is  subject  to  revocation.57 

oi  Penn  v.  Guggenheimer,  76  Va.  839. 

"  Watson  v.  Watson,  128  Mass.  152;   Briscoe  v.  Briscoe,  7  Ir.  Eq.  123. 

63  Tibbits  v.  Tibbits,  19  Ves.  663;   Dewar  v.  Maitland,  L.  R.  2  Eq.  834. 

"  Streatfield  v.  Streatfield,  Gas.  t.  Talb.  176. 

so  Penn  v.  Guggenheimer,  76  Va.  839. 

58  Buttricke  v.  Brodhurst,  3  Brown,  Ch.  88. 

bt  Pusey  v.  Desbouvrie,  3  P.  Wins.  315;   Wake  v.  Wake,  3  Brown.  Ch.  255; 


Ch.  4]  ELECTION.  57 

SAME— ELECTION    BY    PERSONS    UNDER   DISABILITY. 

29.  Married  women  may  make  a  binding  election  -with- 
out the  intervention  of  a  court,  though  an  inquiry  may  be 
directed  as  to  what  course  is  the  more  beneficial,  and  an 
election  required  -within  a  limited  time  thereafter.58 

30.  With  respect  to  infants,  the  election  may  be  deferred 
until  the  infant  becomes  of  age;59  but  the  usual  practice  is 
for  the  court  to  make  the  election  for  him,  after  judicially 
ascertaining  what  course  is  the  more  beneficial.60 

31.  With  respect  to  lunatics,  the  court  will  elect  for 
them,  after  judicial  inquiry  as  to  what  course  is  best  for 
them.61 

In  making  an  election  the  court  will  generally  select  the  more 
valuable  property;  but  in  the  case  of  lunatics  the  court  may  exer- 
cise a  sound  discretion.  Accordingly,  where  testator's  widow  had 
been  hopelessly  insane  for  many  years,  the  court  elected  to  take  a 
testamentary  provision  ample  for  her  support,  though  her  statutory 
interest  in  her  husband's  estate  was  much  more  valuable;  being 
controlled  by  the  consideration  that  a  contrary  election  would  greatly 
interfere  with  the  entire  scheme  of  the  will  which  contained  many 
bequests  for  public  and  charitable  purposes.62 

Dillon  v.  Parker,  1  Swanst.  359,  note;  Macknet  v.  Macknet,  29  N.  J.  Eq.  54; 
Dabney  v.  Bailey,  42  Ga.  521;  Richart  v.  Rickart,  30  Iowa,  465;  Woodburn's 
Estate,  138  Pa.  St.  606,  21  Atl.  16. 

58  Gretton  v.  Ha  ward,  1  Swanst.  409,  413,  note;  Davis  v.  Page,  9  Ves.  350; 
Tiernan  v.  Roland,  15  Pa.  St.  451;  Howell  v.  Tomkins,  42  N.  J.  Eq.  305,  11 
Atl.  333. 

so  Streatfield  v.  Streatfield,  Cas.  t.  Talb.  176,  1  White  &  T.  Lead.  Cas.  Eq. 
333. 

eo  Bigland  v.  Huddleston,  3  Brown,  Ch.  2S5,  note;  Ashburnham  v.  Ashburn- 
ham,  13  Jur.  1111;  Cavendish  v.  Dacre,  31  Ch.  Div.  470;  McQueen  v.  Mc- 
Queen, 2  Jones,  Eq.  16. 

si  Wilder  v.  Pigott,  22  Ch.  Div.  263;  Kennedy  v.  Johnston,  65  Pa.  St.  451; 
Washburn  v.  Van  Steenwyk,  32  Minn.  336,  20  N.  W.  324;  Penhallow  v.  Kirn- 
ball,  61  N.  H.  596;   State  v.  Ueland,  30  Minn.  277,  15  N.  W.  245. 

62  Van  Steenwyek  v.  Washburn,  59  Wis.  483,  509,  17  N.  W.  289.  It  has,  how- 
ever, been  held  that  the  court  will  not  regard  the  interest  of  the  heirs  in  mak- 
ing such  an  election.    Penhallow  v.  Kimball,  61  N.  H.  596. 


58  THE    DOCTRINES    OF    EQUITY.  [Cb.  4 


SAME— EFFECT  OF  ELECTION. 

32.  An  election  once  made,  whether  express  or  implied, 
is  irrevocable,  and  binds  not  only  the  person  making  it, 
and  all  claiming  under  him,03  but  also  the  other  benefi- 
ciaries under  the  instrument  of  donation  whose  rights  are 
directly  affected  by  the  election.64 

Thus,  -where,  by  virtue  of  an  election  by  a  widow  to  take  under  a 
will,  an  estate  has  become  vested  in  another  devisee,  the  latter  cannot 
defeat  the  right  of  his  creditors  to  subject  that  estate  to  their  debts 
by  disclaiming  title  in  favor  of  the  widow,  so  as  to  enable  her  to  hold 
the  estate  as  her  dower.05 


SATISFACTION. 

33.  Satisfaction  is  the  donation  of  a  tiling  with  the  in- 
tention that  it  is  to  be  taken  either  wholly  or  in  part  in 
extinguishment  of  some  prior  claim  of  the  donee.66 

The  principle  underlying  the  doctrine  of  satisfaction  is  similar 
to  the  one  which  underlies  the  doctrine  of  election;  namely,  that, 
when  the  donor  makes  a  gift  with  the  express  or  implied  intention 
that  it  shall  be  taken  in  extinguishment  of  some  prior  claim  of  the 
donee,  the  latter  cannot  accept  the  gift  and  at  the  same  time  enforce 
his  claim  against  the  donor.67  To  warrant  the  application  of  the  doc- 
trine, there  must  be  something  to  show  that  it  was  the  donor's  inten- 
tion that  the  gift  should  be  in  satisfaction  of  the  prior  obligation. 
Where  this  intention  is  expressed,  no  comment  is  required;  for, 
where  the  subsequent  gift  is  expressly  bestowed  in  extinguish- 
ment of  the  prior  demand,  the  donee  clearly  cannot  claim  both.68 

es  Earl  of  Northumberland  v.  Earl  of  Aylesford,  Amb.  540;  Dew&r  v.  Mait- 
land,  L.  R.  2  Eq.  834;   Cory  v.  Cory,  37  N.  J.  Eq.  198. 
e*  1  Pom.  Eq.  Jur.  §  516. 
65  Penn  v.  Guggenheimer,  76  Va.  839. 
68  Lord  Chichester  v.  Coventry,  L.  R.  2  H.  L.  71,  95. 
6T  l  Pom.  Eq.  Jur.  §  520. 
68  Hardingham  v.  Thomas.  2  Drew,  353. 


Cll.    4]  SATIS  FACTION.  59 

But  in  many  cases  this  intention  has  to  be  implied  from  the  cir- 
cumstances, and  then  considerable  difficulty  is  often  experienced. 


SAME— ADMISSIBILITY   OF    EVIDENCE    AS    TO    INTENTION. 

34.  Where  the  gift  relied  on  to  extinguish  the  prior 
claim,  is  not  accompanied  by  any  -writing,  and  rests  -wholly 
in  parol,  verbal  evidence,  including  the  donor's  con- 
temporaneous declarations,  is  admissible  to  show  the  true 
nature  and  effect  of  the  -whole   transaction.69 

35.  Where  the  subsequent  gift  is  evidenced  by  a  -written 
instrument  -which  raises  a  presumption  that  the  gift  is  in 
satisfaction  of  the  prior  claim,  parol  evidence  is  admissi- 
ble to  rebut  the  presumption;  but,  -where  the  instrument 
raises  no  such  presumption,  parol  evidence  is  not  admis- 
sible to  raise  the  presumption  and  to  show  the  intention 
of  the  parties.70 

Where,  under  the  rules  of  law,  a  written  donation  indicates  no  in- 
tention to  satisfy  the  prior  claim  of  the  donee,  parol  evidence  is  not 
admissible  to  show  such  intent,  since  that  would  be  to  alter  and  vary 
the  terms  of  the  instrument;  but,  where  a  presumption  of  satisfac- 
tion arises  from  the  instrument  itself,  the  admission  of  parol  evi- 
dence to  show  whether  this  presumption  is  well  or  ill  founded  does 
not  violate  the  rule  against  the  alteration  of  written  instruments 
by  parol  evidence.71  It  should  also  be  noted  that  questions  as  to  the 
admissibility  of  extrinsic  evidence  as  to  the  donor's  intention  are 
of  necessity  confined  to  the  subsequent  gift,  and  not  to  the  prior  ob- 
ligation, for  that  stands  admitted,  and  the  only  inquiry  is  whether 
the  subsequent  gift  was  intended  by  the  donor  as  a  satisfaction.72 

69  1  Pom.  Eq.  Jur.  §  576;  Kirk  v.  Eddowes,  3  Hare,  509;  Sims  v.  Sims,  10  N. 
J.  Eq.  158,  162,  163;  Jones  v.  Mason,  5  Rand.  (Va.)  577. 

70Tussaud  v.  Tussaud,  9  Ch.  Div.  363;  Hall  v.  Hill,  1  Dru.  &  War.  94; 
Kirk  v.  Eddowes,  3  Hare,  509;  Gilliam  v.  Chancellor,  43  Miss.  437;  Cloud  v. 
Clinkinbeard,  8  B.  Mon.  397;   Reynolds  v.  Robinson,  82  N.  Y.  103. 

7i  Hall  v.  Hill,  1  Dru.  &  War.  94;   Kirk  v.  Eddowes,  3  Hare,  509. 

"  Hall  v.  Hill,  1  Dru.  &  War.  94,  133. 


<J0  THE    DOCTRINES    OF    EQUITY.  [Cll.   4 

SAME— CLASSIFICATION. 

36.  The  doctrine  of  satisfaction  has  been  applied  to  two 
classes  of  cases: 

(a)  Where   a   debtor,  by  will   or   otherwise,  confers   a 

pecuniary  benefit  on  his  creditor. 

(b)  Where   a   father    or  person   filling  the  place  of  a 

parent  makes  a  double  provision  for  a  child  or 
person  standing  towards  him  in  a  filial  rela- 
tion.73 

SAME— SATISFACTION    OF   DEBT   BY    LEGACY,  ETC. 

37.  Where  testator  gives  a  legacy  to  a  creditor  equal  to 
or  exceeding  the  amount  of  the  debt,  the  presumption  is 
that  it  was  intended  to  be  a  discharge  of  the  debt;74  but 
slight  circumstances  will  be  laid  hold  of  to  overcome  the 
presumption.75 

This  branch  of  the  doctrine  rests  on  the  maxim  that  equity  im- 
putes an  intention  to  fulfill  an  obligation,  viz.  a  legacy  to  a  cred- 
itor must  have  been  intended  in  satisfaction  of  the  debt  which  testa- 
tor was  under  a  legal  obligation  to  pay.  But,  since  a  legacy  also 
imports  a  bounty,  the  presumption  is  not  favored  by  the  courts, 
and  they  lean  against  it.  Where,  however,  the  debtor  bequeaths  ex- 
actly the  same  sum  as  the  debt,  or  a  greater  sum,  without  any  state- 
ment as  to  intent,  it  will  be  taken  as  a  satisfaction;76  but,  if  the 
legacy  be  less  than  the  debt,  it  has  never  been  held  a  satisfaction, 
even  pro  tanto."     So,  also,  satisfaction  will  not  be  presumed  where 

73  A  third  class  of  cases  is  added  by  Mr.  Pomeroy  and  by  Mr.  Snell,  viz. 
satisfaction  of  legacies  by  subsequent  legacies,  but  manifestly  this  is  pux*ely 
a  question  as  to  the  construction  of  the  will,  and  not  of  satisfaction. 

74  Talbot  v.  Duke  of  Shrewsbury,  2  White  &  T.  Lead.  Cas.  Eq.  379. 

75  Lady  Thynne  v.  Earl  of  Glengall,  2  H.  L.  Cas.  153;  Richardson  v.  Greese, 
3  Atk.  65;  Strong  v.  Williams,  12  Mass.  390;  Deichman  v.  Arndt,  49  N.  J. 
Eq.  106,  22  Atl.  799;   Eaton  v.  Benton,  2  Hill  (N.  Y.)  576. 

76  Talbot  v.  Duke  of  Shrewsbury,  2  White  &  T.  Lead.  Cas.  Eq.  379;  Haynes 
v.  Mico,  1  Brown,  Ch.  130. 

77  Eastwood  v.  Vinke,  2  P.  Wms.  617;   Strong  v.  Williams,  12  Mass.  391. 


Ch.  4]  SATISFACTION.  61 

there  is  an  express  direction  in  the  will  for  payment  of  debts  and 
legacies,78  or  even  of  debts  alone,79  for  in  such  cases  the  court  infers 
an  intention  by  testator  that  both  the  debt  and  the  legacy  shall  be 
paid  the  creditors;  nor  will  satisfaction  be  presumed  where  the 
time  fixed  for  the  payment  of  the  legacy  is  different  from  that  at 
which  the  debt  is  due,  so  as  not  to  be  equally  advantageous  to  the 
creditor;80  nor  where  the  legacy  is  contingent  or  uncertain,  as,  for 
example,  the  residue  of  testator's  estate;81  nor  where  testator  has 
assigned  a  particular  motive  for  the  gift; 82  nor  where  the  debt  was 
incurred  after  the  will  was  executed;83  nor  where  the  legacy  is 
of  specific  goods  and  chattels  of  uncertain  value.84  In  conclusion,  it 
should  be  stated  that  the  foregoing  rules  apply  only  where  there 
is  no  express  declaration  in  the  will  as  to  the  intention  with  which 
the  legacy  is  given,  for  in  all  cases  an  express  declaration  in  the  will 
that  the  legacy  is  in  satisfaction  of  the  debt  will  be  respected  by  the 
courts. 

SAME— DOUBLE  PROVISIONS  FOR  CHILD  BY  PARENT  OR 
PERSON  IN  LOCO  PARENTIS. 

38.  This  class  of  cases  is  again  subdivided  as  follows: 

(a)  First  a  will,  and  then  a  gift  or  advancement. 

(b)  First  a  covenant  or  agreement  to  make  a  set- 

tlement,   followed    by   a   testamentary   pro- 
vision. 

SAME— ADEMPTION. 

39.  Where  a  father  or  a  person  standing  in  loco  parentis 
makes   a  testamentary  provision   for    a    child,  and   then, 

78  Chancey's  Case,  1  P.  Wms.  408,  2  White  &  T.  Lead.  Cas.  Eq.  380. 

79  in  re  Huish,  43  Ch.  Div.  260;  Heisler  v.  Sharp's  Ex'rs  (N.  J.  Prerog.)  14 
Atl.  624. 

so  Clark  v.  Sewell,  3  Atk.  96;  Byrne  v.  Byrne,  3  Serg.  &  R.  54;  Van  Riper 
v.  Van  Riper,  2  N.  J.  Eq.  1;  Cloud  v.  Clinkinbeard,  8  B.  Mon.  397.  But, 
where  the  legacy  is  payable  before  the  debt  becomes  due,  satisfaction  is  pre- 
sumed.    Walthen  v.  Smith,  4  Madd.  325. 

si  Barret  v.  Beckford,  1  Ves.  Sr.  519;  Byrne  v.  Byrne,  3  Serg.  &  R.  54. 

82  Mathews  v.  Mathews,  2  Ves.  Sr.  635;   Charlton  v.  West,  30  Beav.  124. 

83  Cranmer's  Case,  2  Salk.  508;  Heisler  v.  Sharp's  Ex'rs,  44  N.  J.  Eq.  167, 
14  Atl.  624;   Sullivan  v.  Latimer,  38  S.  C.  158,  17  S.  E.  701. 

s*  Deichman  v.  Arndt,  49  N.  J.  Eq.  106,  22  Atl.  799. 


62  THE    DOCTRINES    OF    EQUITY.  [Cll.  4 

during  his  lifetime,  makes  a  gift  or  advancement  to  such 
child,  the  presumption  arises  that  the  subsequent  gift  was 
intended  as  a  satisfaction  of  the  testamentary  provision. 
Tins  form  of  satisfaction  is  technically  called  an  "ademp- 
tion" of  the  testamentary  provision.85 

This  branch  of  the  doctrine  rests  on  the  two  maxims  that  equality 
is  equity,  and  that  equity  imputes  an  intention  to  fulfill  an  obligation, 
viz.:  Looking  at  the  ordinary  dealings  of  mankind,  equity  will  pre- 
sume that  a  parent  intends  to  do  what  he  is  in  duty  bound  to  do, — 
make  a  provision  for  his  children  according  to  his  means, — and  that 
he  will  distribute  his  estate  equally  among  them.  Hence  the  pre- 
sumption is,  in  the  absence  of  any  declaration  to  the  contrary,  that 
a  father  who  makes  a  gift  to  a  child,  after  having  already  provided 
for  him  by  will,  did  not  intend  the  will  to  remain  in  full  force,  but 
that  he  intended  to  satisfy  in  his  lifetime  the  obligation  which  he 
would  otherwise  have  discharged  at  his  death.88  It  follows  from  this 
principle  that  where  the  relation  of  parent  and  child,  either  natural 
or  artificial,  does  not  exist  between  the  parties,  a  subsequent  gift 
by  the  testator  will  not  be  presumed  to  adeem  or  satisfy  a  prior 
testamentary  provision,  for  both  proceed  from  testator's  bounty, 
and  there  is  no  reason  why  the  court  should  assign  any  limit  to  that 
bounty  which  is  wholly  arbitrary.  The  consequence  is  that  an  il- 
legitimate child,  which  is  in  law  deemed  to  be  a  stranger  to  its 
father,  may  find  itself  better  provided  for  than  it  would  have  been 
if  it  had  been  legitimate.87  It  should,  however,  be  carefully  borne 
in  mind  that  these  presumptions  apply  only  where  there  is  no  ex- 
press declaration  of  the  donor's  intention;  and  that  in  all  cases — it 
matters  not  whether  the  parental  relation  exists,  or  whether  the 
parties  are  strangers — it  is  perfectly  competent  for  the  donor,  by 
an  instrument  in  writing  executed  contemporaneously  with  the  gift, 
to  declare  that  the  prior  testamentary  provision  is  thereby  adeemed; 
and  the  courts  will  uive  effect  to  such  declaration.88     In  a  recent 

as  Ex  parte  Pye,  18  Ves.  150,  2  White  &  T.  Lead.  Cas.  Eq.  368;  Jones  v. 
Mnson,  5  Rand.  (Va.)  577. 

so  Suisse  v.  Lord  Lowther,  2  Hare,  424,  435. 

87  Ex  parte  Pye,  18  Ves.  150. 

ssTussaud  v.  Tussaud,  9  Ch.  Div.  363;  Cooper  v.  Cooper,  8  Ch.  App.  813, 
819,  note;  Howze  v.  Mallett,  4  Jones,  Eq.  194;  Richards  v.  Humphreys,  15 
Pick.  133. 


Ch.   4]  SATISFACTION.  63 

case,  however,  the  New  York  court  of  appeals  held  that  a  devise  of 
land  by  a  father  to  a  daughter  was  not  adeemed  by  a  subsequent 
gift  of  money  to  her,  though  she  gave  a  receipt  expressly  declaring 
the  gift  to  be  received  as  part  of  her  father's  estate;  one  of  the 
grounds  of  decision  being  that  such  an  ademption  would  be  a  rev- 
ocation of  the  will  in  a  manner  other  than  that  specified  by  the 
statute  of  wills.89  Now,  manifestly  an  ademption  of  a  testamentary 
provision  is  not  a  revocation  of  the  will.  A  testator  bequeaths  a 
specific  chattel  which  is  destroyed  during  his  lifetime.  The  legacy 
fails,  not  because  it  is  revoked,  but  because  there  is  no  subject-matter 
to  satisfy  it.  It  is  "adeemed"  or  "taken  away"  for  want  of  subject- 
matter.  So,  where  the  will  gives  a  legacy,  and  afterwards  the  tes- 
tator makes  an  advancement  similar  in  kind  and  amount  to  the 
legatee,  the  will  remains  intact,  but  the  legacy  will  not  be  paid  to 
the  legatee  because  he  has  already  had  it.  The  testator  has  in  fact 
anticipated  his  own  death,  and  acted  as  his  own  executor,  by  making 
the  gift  during  his  own  lifetime.90  This  reasoning,  it  seems  to  me, 
shows  the  error  of  the  New  York  decision;  and  in  an  Indiana  case, 
decided  about  the  same  time,  it  was  held  that  a  gift  of  money,  ac- 
companied by  a  receipt  stating  that  it  was  received  in  consideration 
of  the  donee's  interest  in  land  devised  to  him  by  the  donor,  was  an 
ademption  of  the  devise.91 

SAME— PERSON   IN   LOCO    PARENTIS. 

40.  One  -who  intends  to  assume  a  parent's  duty  to  make 
provision  for  a  child,  and  who  has  so  acted  towards  the 
child  as  to  raise  a  moral  obligation  to  provide  for  it,  stands 
in  loco  parentis  to  such  child.92 

89  Burnham  v.  Comfort,  108  N.  Y.  535,  15  N.  E.  710,  the  court  saying,  as  an 
excuse  for  awarding  the  daughter  both  the  money  and  the  land,  that  "a  rule 
of  law  is  to  be  followed  rather  than  departed  from,  for  reasons  moving  from 
the  circumstances  of  the  particular  case." 

so  Rosewell  v.  Bennett,  3  Atk.  78;  Kirk  v.  Eddowes,  3  Hare,  519;  Langdon 
v.  Astor's  Ex'rs,  16  N.  Y.  9,  39-41;  Haynes,  Eq.  (5th  Ed.)  p.  311;  1  Pom.  Eq. 
Jur.  p.  738,  §  554. 

9i  Roquet  v.  Eldridge,  118  Ind.  147,  20  N.  E.  733.  For  further  discussion  as 
to  ademption  of  devise  of  land  by  subsequent  advancement,  see  post,  65. 

92  Powys  v.  Mansfield,  3  Mylne  &  C.  359. 


64  THE    DOCTRINES    OF    EQUITY.  [Ch.    4 

The  importance  of  some  definite  rule  on  this  head  is  manifest  when 
we  bear  in  mind  that  the  doctrine  does  not  apply  where  the  parties 
are  strangers,  but  does  apply  where  the  donor  has  placed  himself 
in  loco  parentis  to  the  child.  Under  the  above  rule,  it  is  not  neces- 
sary thai  there  should  be  a  legal  adoption  of  the  child,  or  that  there 
should  be  any  actual  relationship;03  and,  notwithstanding  the  father 
of  the  child  is  living,  another  person  may  be  deemed  to  stand  in  loco 
parentis  to  it.9* 

SAME— PRESUMPTION    IN   FAVOR   OF   ADEMPTION. 

41.  The  presumption  in  favor  of  ademption  is  so  strong 
that  it  will  not  be  repelled,  by  slight  circumstances  show- 
ing a  contrary  intention.95 

Herein  lies  the  distinguishing  feature  between  this  branch  of  the 
doctrine  and  that  of  satisfaction  of  debts  by  legacies.  Thus,  where, 
after  a  legacy  of  a  larger  amount,  a  smaller  sum  is  given  by  way  of 
advancement,  the  presumption  is  that  the  legacy  is  pro  tanto 
adeemed.96  So,  also,  a  residuary  bequest,  though  uncertain  in 
amount,  may  be  adeemed  either  totally  or  pro  tanto  by  a  subsequent 
gift  or  advancement.97  The  doctrine  has  its  limitations,  however, 
and*  it  has  been  held  that  the  payment  of  money  to  a  child  before  the 
execution  of  the  will  does  not  adeem  a  legacy  therein  contained;98 

»3  Rogers  v.  Soutten,  2  Keen,  598. 

»4  Fowkes  v.  Pascoe,  10  Ch.  A  pp.  350. 

»5  Lady  Thynne  v.  Earl  of  Glengall,  2  H.  L.  Cas.  131;  Ex  parte  Pye,  18  Ves. 
140. 

»6  Pym  v.  Lockyer,  5  Milne  &  C.  29,  overruling  earlier  cases  holding  any 
advancement  to  be  a  complete  ademption  of  a  prior  legacy,  even  though  the 
latter  were  larger  in  amount;  Kirk  v.  Eddowes,  3  Hare,  509;  Langdon  v. 
Astor's  Ex'rs,  16  N.  Y.  9;  Richards  v.  Humphreys,  15  Pick.  133,  136;  Jones  v. 
Mason,  5  Rand.  (Va.)  577. 

97  Schofield  v.  Heap,  27  Beav.  93;  Montefiore  v.  Guedalla,  1  De  Gex,  F.  & 
J.  93;  Tickers  v.  Tickers,  37  Ch.  Div.  526;  Van  Houten  v.  Post,  32  N.  J.  Eq. 
709;  Allen  v.  Allen,  13  S.  C.  512;  In  re  Turner's  Estate,  1  Misc.  Rep.  58,  23  N. 
Y.  Supp.  135.  A  contrary  rule  once  prevailed  in  England.  Freeworth  v. 
Banks,  8  Ves.  85.     See,  also,  Davis  v.  Whittaker,  38  Ark.  435. 

98  Taylor  v.  Cartwright,  L.  R.  14  Eq.  1G7,  176;  Jaques  v.  Swasey,  153  Mass. 
596,  27  N.  E.  771;  In  re  Crawford,  113  N.  Y.  560,  21  N.  E.  682;  Yur-dt's  Ap- 
peal, 13  Pa.  St  575. 


Ch.  4]  SATISFACTION.  65 

nor  is  there  any  ademption  where  the  subsequent  gift  is  of  a  differ- 
ent character  from  the  prior  testamentary  devise,  or  is  expressed 
to  be  given  for  a  different  purpose."  It  is  on  this  ground  that  a 
devise  of  land  is  not  adeemed  by  a  subsequent  gift  of  money,100  but 
it  is  adeemed  by  a  subsequent  gift  of  land.101 

SAME— COVENANT    TO  MAKE  SETTLEMENT  FOLLOWED  BY 
TESTAMENTARY  PROVISION. 

42.  Where  a  father  or  person  in  loco  parentis  first  agrees 
or  covenants  to  niake  a  provision  for  a  child,  and  after- 
wards makes  a  testamentary  provision  for  such  child,  the 
presumption  is  that  the  testamentary  provision  is  in  satis- 
faction of  the  prior  contract  obligation.102 

This  class  of  cases  is  extremely  rare  with  us.  In  England  they 
generally  arise  in  this  manner:  A  father,  on  the  marriage  of  a 
child,  covenants  to  settle  certain  property  on  him,  and  afterwards, 
by  will,  makes  provision  for  him.  Is  the  testamentary  provision  a 
satisfaction  of  the  prior  covenant  obligation,  or  is  the  child  entitled 
to  both?  The  rules  on  which  the  solution  of  this  question  depends 
are  in  the  main  the  same  as  those  governing  ademption.  One  im- 
portant distinction  must,  however,  be  noticed.  In  case  of  ademp- 
tion, the  will — a  revocable  instrument — is  first,  and  testator  has  an 
absolute  power  of  revoking  or  altering  any  gift  thereby  made.  But, 
where  the  covenant  obligation  is  earlier  in  date  than  the  will,  the 
testator,  when  he  makes  his  will,  is  under  a  liability  which  he  cannot 
revoke  or  avoid.  He  can  only  put  an  end  to  it  by  payment,  or  by 
making  a  gift  with  the  condition,  expressed  or  implied,  that  the 
legatees  shall  take  the  gift  made  by  the  will  in  satisfaction  of  their 
claim  under  the  previous  obligation.  It  is  therefore  easier  to  assume 
an  intention  to  adeem  than  an  intention  to  give  a  legacy  in  lieu 

«9  Suisse  v.  Lord  Lowther,  2  Hare,  424,  434;  Watson  v.  Watson,  33  Beav. 
574;    Clark  v.  Jetton,  5  Sneed  (Tenn.)  229. 

ioo  Allen  v.  Allen,  13  S.  C.  512;  Weston  v.  Johnson,  48  Ind.  1. 

ioi  Hansbrough's  Ex'rs  v.  Hooe,  12  Leigh  (Va.)  316;  Pickett  v.  Leonard,  104 
N.  C.  326,  10  S.  E.  466. 

102  Hinchcliffe  v.  Hinchcliffe,  3  Ves.  516;  Lady  Thynne  v.  Earl  of  Glengall, 
2  H.  L.  Cas.  131. 

EQ.JUR. — 5 


THE    DOCTRINES    OF    EQUITY.  [Ch.   4 

or  in  satisfaction  of  an  existing  obligation.103     Indeed,  this  class  is 
very  nearly  analogous  to  the  satisfaction  of  debts  by  legacies. 


PERFORMANCE. 

43.  A  covenant  to  do  a  certain  act  by  which  a  particu- 
lar benefit  or  specified  property  is  to  be  conferred  on  an- 
other -will  be  deemed  to  be  performed — 

(a)  Where  the  covenantor  does  some  act  which  wholly 

or  approximately  effects  the  purpose  of  the  cov- 
enant, though  it  does  not  expressly  refer  or  pre- 
cisely conform  to  the  covenant. 

(b)  Where,  by  operation   of  law,  the   covenantor  per- 

mits property  to  descend  to  the  covenantee 
which  may  be  taken  wholly  or  partially  to  ful- 
fill the  obligation. 

This  doctrine  rests  on  the  maxim  that  equity  imputes  an  intention 
to  fulfill  an  obligation.104  The  first  class  of  cases  is  illustrated  by 
Wilcocks  v.  Wilcocks.105  There  a  man  on  his  marriage  covenanted 
to  purchase  lands  of  £200  a  year,  and  settle  tliem  as  jointure  on  his 
\\  it'-,  and  to  the  first  and  other  sons  of  the  marriage.  He  purchased 
lands  of  that  value,  and  took  a  conveyance  to  himself  in  fee,  making 
no  settlement.  At  his  death,  his  heir,  who  was  also  entitled  under 
the  settlement  as  first  son,  claimed  the  purchased  land  as  heir,  and 
also  asserted  a  right  to  have  the  covenant  performed  by  laying  out 
an  adequate  portion  of  the  personalty  in  the  purchase  of  other  land. 
It  was  held  that  the  lands  which  had  descended  to  him  as  heir 
must  have  been  purchased  by  the  deceased  with  an  intention  to  fulfill 
his  covenant  obligation,  and  that,  though  no  settlement  had  actually 
been  made,  the  covenant  must  be  deemed  to  have  been  performed. 

The  second  class  of  cases  is  illustrated  by  Blandy  v.  Widmore,106 

103  Tussaud  v.  Tussaud,  9  Ch.  Div.  363;  Lord  Chichester  v.  Coventry,  L.  R. 
2  H.  L.  71,  90. 

104  Ante,  27. 

los  2  Vera.  558,  2  White  &  T.  Lead.  Cas.  Eq.  417.     See,  also,  as  illustrating 
same  principle,  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  211,  Cas.  t  Talb.  88. 
ioo  1  P.  Wms.  324,  2  White  &  T.  Lead.  Cas.  Eq.  417. 


Ch.  4]  CONVERSION.  67 

where  a  man  had  covenanted  to  leave  his  wife  £620,  and  he  died  in- 
testate, and  her  share  under  the  statute  of  distribution  came  to  more 
than  £620.  It  was  held  that  she  must  take  her  distributive  share  as 
performance  of  the  covenant,  and  that  she  could  not  take  her  share 
and  also  claim  under  the  covenant. 

This  doctrine  is  of  very  little  importance  with  us,  and  it  is  only 
necessary  to  point  out  the  distinction  between  it  and  satisfaction, 
which  has  been  stated  as  follows:  In  satisfaction  the  thing  done 
is  something  different  from  the  thing  covenanted  to  be  done,  and  is 
in  fact  a  substitute  for  the  thing  covenanted  to  be  done;  whereas 
in  performance  the  identical  act  which  the  party  contracted  to  do 
is  considered  to  have  be^n  done.107 

CONVERSION. 

44.  Conversion  is  that  notional  change  in  the  nature  of 
property  by  which,  for  certain  purposes,  real  estate  is 
considered  as  personal,  and  personal  as  real,  and  trans- 
missible and  descendible  as  such.108 

The  great  practical  importance  of  this  doctrine  arises  from  the 
distinction  which  our  law  unfortunately  allows  between  the  suc- 
cessions on  intestacy  to  real  and  to  personal  property.  It  rests,  as 
we  have  seen,  on  the  maxim  that  equity  regards  that  as  done  which 
ought  to  be  done,109  and  it  applies  whenever  money  or  other  personal 
property  is  directed  to  be  employed  in  the  purchase  of  land,  or  when- 
ever land  is  directed  to  be  sold  and  turned  into  money,  it  matters 
not  how  the  direction  be  given,  whether  by  will,  by  way  of  contract, 
marriage  settlement,  or  otherwise.110  The  continually  recurring  ele- 
mentary question  in  applying  this  doctrine  is :  Does  the  instrument 
relied  on  as  working  a  conversion  contain  an  absolute  expression  of 
intention  that  the  money  shall  be  laid  out  in  land,  or  that  the  land 
be  sold  and  turned  into  money?  When  once  this  intention  is  suffi- 
ciently expressed,  the  accidental  circumstance  that  the  money  has 

107  Smith's  Eq.  p.  267;   Goldsmid  v.  Goldsmid,  1  Swanst.  211. 

los  Haynes,  Eq.  p.  325;   3  Pom.  Eq.  Jur.  §  1159. 

loo  Ante,  26. 

no  Fletcher  v.  Ashburner,  1  Brown,  Ch.  497,  499,  1  White  &  T.  Lead.  Cas. 

Eq.  826. 


68  THE    DOCTRINES    OF    EQUITY.  [Ch.   4 

in  fact  not  been  laid  out  in  land,  or  the  land  in  fact  not  been  sold 
and  turned  into  money,  can  have  no  effect,  for  equity  will  treat  as 
done  thai  which  ought  to  be  done.111  To  work  a  conversion,  there 
Deed  be,  on  the  one  hand,  no  express  direction  that  the  property  be 
treated  as  converted,  nor,  on  the  other,  a  conversion  in  fact;  but 
the  test  in  all  cases  is  whether  there  is  an  absolute  direction  that  the 
real  estate  be  turned  into  personal,  or  that  personal  estate  be  turued 
into  real 

SAME— WORDS  SUFFICIENT   TO  WORK  A  CONVERSION. 

45.  While  the  direction  to  convert  must  be  clear  and 
imperative,  it  need  not  be  express;  but  it  is  sufficient  if 
the  general  scope  and  tenor  of  the  instrument  (be  it  will, 
contract,  or  otherwise)  manifest,  by  necessary  implication* 
a  clear  intention  by  the  owner  or  contracting  parties  to 
convert  in  any  event. 

The  direction  to  convert  must  be  clear  and  imperative;  for,  if  the 
question  of  laying  out  money  in  land  or  land  in  money  is  optional  or 
discretionary  with  any  one,  there  is  no  room  for  the  application  of  the 
maxim  that  equity  considers  that  as  done  which  ought  to  be  done, 
simply  because  there  is  no  obligation  on  any  one  to  make  the 
change.112  It  has  therefore  been  held  that  a  mere  naked  power  of 
sale,  or  a  discretionary  or  contingent  power,  conferred  by  the  owner 
on  a  thiid  person,  does  not  wTork  a  conversion  of  realty  into  per- 
sonalty; 113  nor  will  a  mere  discretionary  power  to  invest  personalty 
in  land  work  a  conversion  of  the  money  into  real  estate.11*  Where, 
however,  in  such  a  case,  the  whole  scope  and  tenor  of  an  instrument 
show  that  the  owner  intended  the  realty  to  be  sold,  or  the  money  to 

«J  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  215;  Scudamore  v.  Scudamore, 
Finch.  Free.  543;  Haynes,  Eq.  p.  326;  3  Pom.  Eq.  Jur.  §  1159. 

ii-IInynes,  Eq.  p.  329;    Wheless  v.  Wheless  (Term.)  21  S.  W.  595. 

"3  Curling  v.  May,  cited  3  Atk.  255;  Bourne  v.  Bourne,  2  Hare,  35;  Mon- 
criof  v.  Ross,  50  N.  Y.  431;  Haward  v.  Peavey,  128  111.  430,  21  N.  E.  503;  Clift 
v.  Moses,  116  N.  Y.  144,  157,  22  N.  E.  393;  In  re  McComb,  117  N.  Y.  378,  22  N. 
B.  L070;  Greenough  v.  Small,  137  Pa.  St.  128,  20  Atl.  396;  In  re  Machemer's 
Estate,  140  Pa.  St.  544,  21  Atl.  441;  Mills  v.  Harris,  104  N.  C.  629,  10  S.  E.  704. 

"4  Polley  v.  Seymour,  2  Young  &  C.  708. 


Ch.  4]  CONVERSION.  69 

be  invested  in  land,  in  any  event,  then  the  duty  and  obligation  to 
convert  are  imperative,  and  the  doctrine  of  equitable  conversion  ap- 
plies.116 So,  also,  an  imperative  direction  to  sell  land  in  any  event 
works  an  equitable  conversion,  though  the  time  of  sale  is  left  by  the 
owner  in  the  discretion  of  some  one  else; 116  and  in  the  case  of  wills 
a  conversion  of  real  estate  will  be  implied  where  there  has  been 
a  blending  of  the  real  and  personal  estate,  so  as  to  show  that  testator 
intended  to  create  a  common  fund  out  of  both  the  real  and  personal 
estate,  and  to  bequeath  the  fund  as  money.117 
Contract  for  Sale  of  Land. 

After  the  execution  of  a  contract  for  the  sale  of  land,  equity,  look- 
ing on  that  agreed  to  be  done  as  actually  done,  considers  the  vendee 
as  the  equitable  owner  of  the  land,  and  the  interest  of  the  vendor  as 
personalty.lls  But,  to  have  this  effect,  the  contract  must  be  en- 
forceable, and  hence  a  parol  contract  of  sale  does  not  work  a  con- 
version of  the  real  estate  into  personalty  so  far  as  the  vendor's  rights 
are  concerned.119  If,  however,  the  contract  is  enforceable,  all  the 
consequences  of  conversion  follow;  and  on  the  vendor's  death  the 
purchase  price  belongs  to  his  residuary  legatees,  and  not  to  the 
persons  to  whom  he  has  specifically  devised  the  land,  though  they 
will  be  compelled  to  execute  the  deed  to  the  vendee.120 

SAME— TIME  OF  CONVERSION. 

46.  Subject  to  the  general  principle  that  the  terms  of 
each  particular  instrument  must  guide  in  the  construction 
and  effect  of  that   instrument,  the  rule  is  that  conversion 

us  Ford  v.  Ford,  70  Wis.  19.  33  N.  W.  18S;  Dodge  v.  Williams,  46  Wis.  70. 
1  N.  W.  92,  and  50  N.  W.  1103;  Fahnestock  v.  Fahnestock,  152  Pa.  St.  56. 
25  Atl.  313. 

us  Crane  v.  Bolles,  49  N.  J.  Eq.  373,  24  Atl.  237;  Stagg  v.  Jackson,  1  N.  Y. 
206;  Ford  v.  Ford,  70  Wis.  19,  49,  33  N.  W.  188;  Mellon  v.  Reed,  123  Pa.  St. 
1,  14,  15  Atl.  906. 

H7  In  re  Marshall's  Estate,  147  Pa.  St.  77,  23  Atl.  391;  Hunt's  Appeals,  105 
Pa.  St.  128,  141. 

us  See  ante,  26,  maxim  "Equity  regards  that  as  done  which  ought  to  be 
done";   Gilbert  v.  Port,  28  Ohio  St.  276,  296. 

us  Mills  v.  Harris,  104  N.  C.  626,  10  S.  E.  704. 

120  Newport  Waterworks  v.  Sisson  (R.  I.)  28  Atl.  336. 


70  THE    DOCTRINES    OF    EQUITY.  [Ch.  4 

takes  place  at  the  time  the  instrument  becomes  operative; 
i.  e.  in  case  of  wills,  at  the  death  of  testator,  and  in  case 
of  deeds  and  other  instruments  inter  vivos,  on  execution 
and  delivery.121 

Eere,  as  everywhere  throughout  this  doctrine,  the  intention  of  the 
testator  or  of  tbe  contracting  parties,  as  expressed  in  the  instru- 
ment, is  our  guide.  We  have  already  seen  that,  when  the  question 
of  sale  is  left  in  the  discretion  of  any  one,  there  is  no  constructive 
conversion;  and  in  such  a  case  the  conversion  takes  place,  not  on 
the  taking  effect  of  the  instrument,  but  from  the  time  of  sale.122  So, 
also,  if  there  be  a  trust  to  sell  on  the  happening  of  a  particular 
event,  which  may  or  may  not  happen,  the  conversion  takes  place 
only  as  from  tbe  happening  of  that  event,  though,  of  course,  the 
moment  the  event  occurs  the  conversion  takes  place,  just  as  if  there 
had  been  an  absolute  direction  to  sell  at  that  time.123  When,  how- 
ever,  the  direction  to  convert  is  imperative  and  absolute,  the  conver- 
sion takes  place  when  the  instrument  becomes  operative.  Therefore 
a  direction  in  a  will  to  sell  real  estate,  and  distribute  the  proceeds, 
works  an  equitable  conversion,  so  far  as  the  legatee's  rights  are 
concerned,  as  of  the  date  of  testator's  death,  though  the  time  of 
sale  is  postponed  until  the  termination  of  a  life  estate  created  by 
the  will.12* 

121  Sncll,  Eq.  p.  211. 

122  Xess  v.  Davidson.  49  Minn.  469,  52  N.  W.  46;  Stoner  v.  Zimmerman,  21 
Pa.  St.  394;  Konvalinka  v.  Geibel,  40  N.  J.  Eq.  443,  446,  3  Atl.  260;  Darlington 
v.  Darlington,  160  Pa.  St.  65,  2S  Atl.  503. 

lasHaynes,  Eq.  p.  334;  Ward  v.  Arch,  15  Sim.  389;  Polley  v.  Seymour,  2 
Younge  &  C.  Exch.  70S;    Keller  v.  Harper,  64  Md.  74,    1  Atl.  65. 

124  Allen  v.  Watts,  98  Ala.  384,  11  South.  646;  Ramsey  v.  Hanlon,  33  Fed. 
425;  In  re  Thomman's  Estate  (Pa.  Sup.)  29  Atl.  84.  In  Cropley  v.  Cooper,  16 
Wall.  167,  it  is  said:  "The  real  estate  having  been  directed  by  the  will  to  be 
converted  into  money,  it  is  to  be  regarded  for  all  the  purposes  of  this  case  as 
if  it  were  money  at  the  time  of  the  death  of  testator.  That  it  was  not  to  be 
sold  until  after  the  termination  of  two  successive  life  estates  does  not  affect 
tbe  application  of  the  principle:  Equity  regards  substance,  and  not  form,  and 
considers  that  as  done  which  is  required  to  be  done.  The  sale  being  directed 
absolutely,  the  time  is  immaterial."  See,  also,  Wurts  v.  Page,  19  N.  J.  Eq. 
365;  Hocker  v.  Gentry,  3  Mete.  (Ky.)  463;  Tazewell  v.  Smith,  1  Rand.  (Va.) 
313;   Blight's  Appeal,  100  Pa.  St.  602.     In  New  York  the  rule  is  that  if  tes- 


Ch.  4]  CONVERSION.  71 

With  respect  to  the  time  of  conversion,  a  difficult  question  has 
arisen  where  land  has  been  leased  for  a  long  term  of  years,  with  an 
option  in  the  lessee  to  purchase  at  any  time.  On  exercising  the  op- 
tion after  the  lessor's  death,  does  the  conversion  of  the  lessor's  inter- 
est in  the  land  relate  back  to  the  date  of  the  lease,  and  the  purchase 
money  thus  go  to  his  personal  representatives,  or  does  the  conver- 
sion take  place  when  the  option  is  exercised,  and  the  purchase 
money,  therefore,  belong  to  the  lessor's  heirs?  The  English  rule  is 
that  the  conversion  operates  retrospectively,  and  that  the  purchase 
money  must  be  paid  to  the  lessor's  personal  representatives;125  but 
in  a  recent  well-considered  Ohio  case  it  was  held  that  the  conversion 
takes  place  when  the  option  is  exercised,  and  that  the  purchase 
money  will  go  to  the  lessor's  heirs,  as  between  them,  on  the  one  side, 
and  the  personal  representatives  of  the  lessor  on  the  other.126  Plain- 
ly, the  Ohio  decision  is  right  in  principle,  for  the  option  to  purchase 
is  a  matter  entirely  within  the  discretion  of  the  lessee,  bringing  the 
case  within  the  general  rule  heretofore  stated, — that  conversion  takes 
place  only  from  the  date  of  sale  whenever  that  question  is  discre- 
tionary or  depends  on  the  happening  of  a  contingent  event. 

SAME— EFFECT    OF    CONVERSION. 

47.  The  general  effect  of  this  doctrine  is  to  make  per- 
sonal estate  real,  and  real  estate   personal,  -with   all   the 

tator  devises  a  life  estate  in  land,  and  directs  a  sale  on  its  expiration,  the  con- 
version takes  place  on  the  termination  of  the  life  estate,  and  not  on  testator's 
death.  Moncrief  v.  Ross,  50  N.  Y.  431;  Savage  v.  Burnham,  17  N.  Y.  561, 
569.  But,  if  the  direction  to  sell  is  absolute,  the  fact  that  the  executors  are 
vested  with  a  discretionary  power  as  to  the  time  of  sale  does  not  prevent  the 
conversion  from  taking  place  as  of  the  date  of  testator's  death.  "When  the 
time  of  sale  is  not  necessarily  postponed  to  a  specified  future  time,  or  the 
happening  of  a  designated  event,  the  conversion  takes  place  at  the  testator's 
death;  the  distributees  taking  their  interests  as  money,  not  land."  Under- 
wood v.  Curtis,  127  N.  Y.  523,  28  N.  E.  585;  Robert  v.  Corning,  89  N.  Y.  225, 
239;  Fraser  v.  Trustees,  124  N.  Y.  479,  26  N.  E.  1034. 

125  Lawes  v.  Bennett,  1  Cox,  167;  Townley  v.  Bedwell,  14  Ves.  592;  Col- 
lingwood  v.  Row,  3  Jur.  (N.  S.)  7S5;  But  even  in  England,  where  an  option  of 
purchase  is  conferred  and  subsequently  exercised,  the  court  will  not,  as  be- 
tween the  vendor  and  purchaser,  imply  a  conversion  as  from  the  date  of  the 
contract  conferring  the  option.     Edwards  v.  Vest,  7  Ch.  Div.  858. 

126  Smith  v.  Loewenstein,  50  Ohio  St.  340,  34  N.  E.  159,  161. 


72  THE    DOCTRINES    OF    EQUITY.  [Ch.  4 

legitimate  consequences  flowing  from  such  a  change, 
though  there  has  been  no  actual  conversion  of  the  prop- 
erty. 

LIMITATION — The  conversion  exists  only  for  the 
purposes  of  the  instrument  directing  it,  and,  except 
in  so  far  as  required  for  such  purposes,  the  property 
constructively  converted  -will  be  treated  as  that  spe- 
cies of  property  which  it  actually  is. 

Tke  importance  of  the  doctrine  of  conversion  becomes  evident 
when  its  effects  are  fully  understood.  Thus,  money  directed  to  be 
laid  out  in  land  descends,  like  land,  to  the  heirs  of  the  person  for 
whose  benefit  the  direction  is  made,  though  he  dies  before  the  invest- 
ment actually  takes  place.127  It  will  pass  by  a  general  devise,128 
and  not  by  a  general  bequest.129  So,  also,  if  money  is  directed  to 
be  laid  out  for  the  benefit  of  a  married  woman,  her  husband  is  en- 
titled  to  an  estate  by  the  curtesy  in  it.130 

On  the  other  hand,  land  directed  to  be  sold  is  regarded  as  personal 
property.  It  will  pass  to  the  personal  representatives  of  the  person 
entitled  to  the  proceeds,131  and  will  be  included  in  a  general  residu- 
ary bequest,182  but  not  in  a  general  devise  of  land.133  It  may  be  sold 
;md  transferred  by  parol,  like  any  other  personal  property,  notwith- 
standing the  statute  of  frauds  relating  to  land;134  and  an  alien  may 
take  the  proceeds  of  land  directed  to  be  sold  for  his  benefit,  though 
he  could  not  have  taken  the  land  as  land.135 
Effect 8  of  Actual  Conversion  Rightly  Made. 

The  foregoing  discussion  has  been  as  to  the  effect  of  constructive 
conversion  before  any  actual  conversion  has  taken  place.     Some  in- 

127  Scudamore  v.  Scndamore,  Finch,  Prec  543. 

128  Greenhill  v.  Greenhill,  2  Vera.  G79. 

129  Edwards  v.  Warwick,  2  P.  Wms.  171. 

130  Swoetapple  v.  Bindon,  2  Vera.  536. 

131  Ashby  v.  Palmer,  1  Mer.  20G;  Hood  v.  Hood,  85  N.  Y.  561;  Wvirts'  Ex'rs 

-<\  19  N.  J.  Eq.  365;    Eby's  Appeal,  84  Pa.  St  241;    Fisher  v.  Banta,  66 
N.  Y.  468;   Welsh  v.  Crater,  32  N.  J.  Eq.  177. 

132  stead  v.  Newdigate,  2  Mer.  521. 

133  Elliott  v.  Fisher,  12  Sim.  505. 

134  Mellon  v.  Reed,  123  Pa.  St.  1,  15  Atl.  906. 

135  Du  Hourmelin  v.  Sheldon,  1  Beav.  79;   Craig  v.  Leslie,  3  Wheat.  563. 


Ch.  4]  CONVERSION.  73 

teresting  questions  have  arisen  with  respect  to  the  effects  of  an  ac- 
tual conversion.  The  earlier  English  rule  was  that  where  land  was 
sold  under  order  of  court  or  by  a  trustee  under  a  power  of  sale,  and 
the  purchase  money  exceeded  the  amount  required  for  the  particular 
purpose  for  which  the  sale  was  made,  as,  for  example,  the  payment 
of  debts,  then  the  excess,  though  in  form  money,  remained,  as  before, 
impressed  with  the  character  of  land,  and  would  descend  as  such.139 
But  these  cases  were  overruled  in  Steed  v.  Preece,137  where  Jessel, 
M.  R,  ruled  that  if  a  conversion  is  rightfully  made,  whether  by  the 
court  or  a  trustee,  all  the  consequences  of  conversion  must  follow, 
and  that  the  property  must  be  treated  as  that  species  of  property 
which  it  actually  is  at  the  death  of  the  person  in  whom  it  vested. 
The  later  American  cases  are  to  the  same  effect.  Thus,  it  was  re- 
cently held  by  the  supreme  court  of  Arkansas  138  that,  where  land 

136  Cooke  v.  Dealey,  22  Beav.  196;  Jermy  v.  Preston,  13  Sim.  356.  See, 
also,  Collins  v.  Champ,  15  B.  Mon.  118. 

137  L.  R.  18  Eq.  192.  In  this  case,  real  estate  had  been  conveyed  in  trust 
for  two  infants  as  tenants  in  common,  with  cross  remainders  between  them. 
A  suit  was  instituted  for  the  administration  of  the  trust,  a  decree  of  sale 
made,  the  estate  sold,  and  the  purchase  money  paid  into  court.  Half  the 
fund  was  paid  to  one  of  the  tenants  in  common,  who  had  attained  majority, 
and  the  other  half  was  carried  over  to  the  separate  account  of  the  other  co- 
tenant,  who  would  have  been  absolutely  entitled  to  that  moiety  if  he  had 
attained  majority.  He  died  before  that  time,  however,  and  the  surviving 
tenant  in  common  claimed  that  the  money  took  the  place  of  the  land  which 
had  been  sold,  and  that  he  was  therefore  entitled  to  it  by  virtue  of  the  cross 
remainder.  The  court,  however,  held  that  the  fund  must  be  treated  as  money, 
and  that  he  was  not  entitled  to  take  it.  This  case  was  followed  in  Arnold 
v.  Dixon,  L.  R.  19  Eq.  113;  Foster  v.  Foster,  1  Ch.  Div.  588;  Wallace  v. 
Greenwood,  16  Ch.  Div.  362;   and  Hyett  v.  Mekin,  25  Ch.  Div.  735. 

138  in  re  Simmons,  55  Ark.  485,  18  S.  W.  933.  Another  instructive  recent 
decision  on  this  subject  is  Wentz's  Appeal,  126  Pa.  St  541,  17  Atl.  875.  There 
land  belonging  to  a  person  who  died  intestate  was  sola  in  partition  proceed- 
ings, and  the  proceeds  were  set  apart  for  the  widow's  benefit  in  lieu  of  dower. 
One  of  the  children  died  during  minority,  and  in  the  lifetime  of  the  widow; 
and,  on  the  widow's  death,  the  question  arose  as  to  whether  the  deceased 
child's  share  in  the  fund  would  descend  to  her  heirs  as  land,  or  whether  it 
should  be  paid  to  her  personal  representatives  as  personal  property.  The 
court  said:  "It  is  error  to  assume  that  the  proceeds  of  the  sale  in  partition 
are  real  estate,  and  require  a  positive  act  of  reconversion  to  get  them  back 
into  their  character  as  money.  *  *  *  The  money  never  is  real  estate  in  law 
any  more  than  in  fact,  but  for  certain  purposes,  and  within  certain  limits, 


i   1  THE    DOCTRINES    OF    EQUITY.  [Ch.  4 

is  sold  pursuant  to  a  decree  of  partition,  the  proceeds,  on  the  death 
of  the  owner,  though  he  is  an  infant,  must  be  distributed  as  per- 
Bonalty,  and  do  not  descend  to  his  heirs;  the  court  saying:  "There 
was  a  conversion  of  land  into  personalty,  and  it  must  go  in  the  con- 
dition it  is  found  at  the  death  of  the  person  in  whom  it  was  vested, — 
to  his  personal  representative,  unless  the  heir  can  show  an  equity  in 
his  favor  for  re-conversion.  But  the  heir,  equally  with  the  dis- 
tributees,  is  a  volunteer;  and  when  he  stands  on  his  naked  right  as 
heir,  uncoupled  with  any  other  fact,  there  is  no  equity  in  his  favor 
as  against  the  distributee.  The  equities  between  them  being  equal, 
or,  rather,  there  being  no  equities,  the  money  must  go  in  the  form  in 
which  it  is  at  the  death  of  the  owner;  that  is,  as  personalty." 

IAmitation. 

These  cases  suggest  the  limitation  of  the  doctrine  of  equitable  con- 
version, viz.  that  the  conversion  exists  only  for  certain  purposes,  and, 
except  in  so  far  as  required  for  such  purposes,  the  property  will  be 
treated  as  it  actually  is.     Thus,  it  has  been  held  that  a  direction  in 

it  is  treated  as  if  it  were  real  estate.  The  purpose  is  to  preserve  the  inher- 
itable quality  of  the  estate,  so  that  the  title  may  not  be  diverted  from  the 
previous  owner,  and  the  limit  is  the  first  devolution.  The  whole  doctrine 
is  the  creature  of  equity  for  a  specific  purpose,  and,  when  that  purpose  is 
accomplished,  the  rule  ceases  to  operate.  So  far,  therefore,  from  the  money 
being  actually  real  estate,  and  requiring  a  positive  act  of  reconversion  to 
restore  it  to  its  natural  character  of  money,  it  never  is  real  estate,  and  is 
only  treated  as  such  within  a  limit  which  all  the  cases  agree  is  the  first  trans- 
mission." It  was  therefore  held  that  the  purpose  of  constructive  conversion  is 
fully  accomplished  when  the  child's  share  vested  in  her  in  remainder  after 
her  mother's  life  interest,  and  that  the  fund,  on  the  child's  death,  would  pass 
as  personalty  to  her  personal  representatives.  The  Massachusetts  doctrine 
has  been  stated  to  be  that,  where  real  estate  is  rightly  converted  into  money, 
the  money  is  impressed  with  the  character  of  land,  until  it  reaches  one  who, 
if  it  had  remained  real  estate,  would  take  it  beneficially;  that  is,  to  his  own 
use  absolutely,  or  with  a  power  to  dispose  of  it  absolutely,  or  make  it  his 
own  to  all  purposes,  and  it  will  then  be  his  own  absolutely.  Holland  v.  Cruft, 
3  Gray,  1G2;  Holland  v.  Adams,  Id.  1SS,  191;  Hovey  v.  Dary,  154  Mass.  7, 
27  X.  E.  G59;  Emerson  v.  Cutler,  14  Tick.  108.  In  Wetherill  v.  Hough  (N. 
J.  Ch.)  29  Atl.  592,  it  was  held,  contrary  to  the  cases  first  above  cited,  that 
when  the  land  of  an  infant  is  converted  into  money  by  the  order  of  the 
court,  and  the  infant  dies  before  attaining  its  majority,  the  fund  will  be  treated 
as  real  estate,  and  descend  to  the  heirs  at  law  of  the  infant. 


Ch.  4]  CONVERSION.  75 

a  will  to  convert  real  estate  into  money  does  not  actually  change  the 
character  of  the  land  so  as  to  authorize  its  sale  as  personalty  by  one 
of  the  executors  without  the  concurrence  of  his  coexecutor;  the 
court  saying:  "There  may  have  been  a  conversion  of  this  realty 
into  personalty  for  many  purposes,  but  not  for  all  purposes.  It 
physically  remained  real  estate,  taxable  as  such,  controllable  as  such, 
and  it  could  only  be  conveyed  as  such ;  and  the  rules  of  law  generally 
applicable  to  real  estate  remained  applicable  to  this." 139  So,  also,  it 
has  been  held  that  an  equitable  conversion  of  realty  into  personalty, 
for  distribution  among  testator's  children,  does  not  prevent  the  title 
to  the  land,  on  testator's  death  and  until  its  actual  conversion,  from 
vesting  in  the  children  as  his  heirs,  and  consequently  it  will  be  sub- 
ject to  the  lien  of  a  judgment  against  one  of  them.140  Conversely, 
money  directed  to  be  laid  out  in  land,  though  regarded  as  a  devise 
of  land  as  between  the  legatee's  heirs  and  personal  representatives, 
is,  nevertheless,  a  personal  asset  so  far  as  testator's  creditors  are 
concerned,  and  must  be  applied,  like  other  personal  assets,  to  the 
payment  of  his  debts.141  Again,  a  direction  to  sell  land  and  to  turn 
over  the  proceeds  to  a  married  woman  does  not  so  change  its  charac- 
ter as  to  enable  her  husband  to  dispose  of  it  as  the  personal  property 
of  the  wife.142 

139  Wilder  v.  Ranney,  95  N.  Y.  7,  12.  See,  also,  Crowley  v.  Hicks,  72  Wis. 
539,  543,  40  N.  W.  151,  where  the  same  conclusion  was  reached.  But  see 
Mellon  v.  Reed,  123  Pa.  St.  1,  15  Atl.  906,  where  it  was  held  that  real  estate 
directed  to  be  converted  may  be  conveyed  as  personal  property. 

"OEnebery  v.  Carter,  98  Mo.  647,  12  S.  W.  522.  The  contrary  has.  how- 
ever, been  held  where  the  title  to  the  land  vested  in  a  trustee.  Hunter  v. 
Anderson,  152  Pa.  St.  386,  25  Atl.  538. 

i«  McFadden  v.  Hefley,  28  S.  C.  317,  5  S.  E.  812. 

142  Franks  v.  Bollans,  3  Ch.  App.  717,  718.  In  this  case  it  was  said:  "Until 
the  land  is  sold,  this  court,  for  many  purposes,  treats  it  as  money;  but  no 
authority  has  been  cited,  and  I  should  have  been  surprised  if  any  authority 
could  have  been  cited,  to  show  that  the  husband  could,  by  any  act  of  his, 
before  sale,  bar  his  wife's  right  to  her  share  of  it"  But  in  Benbow  v.  Moore 
(N.  C.)  19  S.  E.  156,  it  was  held  that  where  a  will  directs  a  sale  of  testator's 
estate,  and  bequeaths  the  proceeds  to  a  married  woman,  the  conversion  takes 
place  at  the  time  of  testator's  death,  and  then  vests  in  the  husband  as  a 
chose  in  action  of  the  wife,  and  he  cannot  be  deprived  thereof  by  subsequent 
legislation  creating  married  women's  separate  estates. 


i  G  THE    DOCTKINES    OF    EQUITY.  [Ch.   4 


SAME— TOTAL    OR   PARTIAL    FAILURE    OF    PURPOSES    FOR 
WHICH    CONVERSION   IS   DIRECTED. 

48.  Where  conversion  is  directed,  whether  by  will  or 
by  deed,  and  -whether  of  money  into  land  or  land  into 
money,  if  the  objects  and  purposes  for  -which  the  conver- 
sion is  intended  totally  fail  before  or  at  the  time  -when  the 
-will  or  deed  comes  into  operation,  no  conversion  -will  take 
place;  but  the  property  -will  remain  in  its  original  state, 
or,  rather,  -will  result  to  the  testator  or  grantor  "with  its 
original  form  unchanged. 

49.  When  the  failure  is  but  partial,  and  the  direction  to 
convert  is  contained  in  a  will,  conversion  takes  place  only 
to  such  extent  as  is  necessary  to  effect  the  purpose  of  the 
■will;  and,  in  as  far  as  the  property  is  not  required  for  that 
purpose,  the  property  will  result  unchanged.  If  the  direc- 
tion to  convert  is  contained  in  a  deed  or  other  instrument 
inter  vivos,  conversion  takes  place  -when  the  instrument 
becomes  operative;  and,  if  a  part  of  the  property  is  not 
required  for  the  purposes  of  the  conversion,  it  will  result 
to  the  grantor  or  settlor  in  its  changed  form. 

Total  Failure. 

The  simplest  case  of  a  total  failure  is  where  a  testator  devises  all 
his  real  estate  to  trustees  in  trust  to  sell  and  divide  the  proceeds 
equally  between  A.  and  B.  Both  die  during  testator's  lifetime.  The 
whole  purpose  and  object  of  testator  in  directing  a  conversion  having 
failed,  the  matter  is  in  the  same  position  as  if  no  trust  to  sell  had 
ever  been  inserted  in  the  will,  and  the  land  descends  to  the  heir.143 

i«  Ilaynes,  Eq.  347;  Hill  v.  Cook,  1  Ves.  &  B.  175;  Fitch  v.  Weber,  6 
Hare,  145.  In  Read  v.  Williams,  125  N.  Y.  560,  571,  26  N.  E.  730,  It  is  said: 
"A  power  of  sale  in  a  will,  however  peremptory  in  form,  if  it  can  be  seen  that 
it  was  inserted  in  aid  of  a  particular  purpose  of  testator,  or  to  accomplish 
his  general  scheme  of  distribution,  does  not  operate  as  a  conversion  where 
the  scheme  or  purpose  fails  by  reason  of  illegality,  lapse,  or  other  cause.  In 
that  case  the  property  retains  its  original  character,  and  it  goes  to  the  heirs 
or  aexl  of  kin  as  the  case  may  be."  See,  also,  Luffberry's  Appeal,  125  Pa. 
St.  5i:j,  17  Atl.  447. 


Ch.  4]  CONVERSION.  77 

The  same  rule  holds  good  if  the  direction  to  convert  is  contained 
in  a  deed.144  So,  also,  where  the  direction  is  to  lay  out  money  in 
land,  whether  by  deed  or  will,  and  the  purpose  for  which  the  direc- 
tion is  made  wholly  fails,  no  conversion  takes  place,  and  the  heir 
has  no  right  in  the  money  so  directed  to  be  laid  out.145 

Partial  Failure. 

Suppose,  however,  that  the  direction  to  convert  realty  into  money 
for  the  benefit  of  A.  and  B.  is  contained  in  a  will,  and  A.  alone  dies 
during  testator's  lifetime.  The  trust  for  conversion  still  subsists, 
for,  without  its  exercise,  B.,  the  survivor,  cannot  receive  his  half 
of  the  proceeds.  Shall  A.'s  lapsed  half,  which,  by  the  doctrine  of 
conversion,  is  personal  property,  go  to  testator's  heir,  or  to  those  en- 
titled under  the  will  to  the  personal  estate?  The  answer  is  found 
in  the  case  of  Ackroyd  v.  Smithson,148  where  it  was  held  that  the  heir, 
and  not  the  residuary  legatee  or  next  of  kin,  was  entitled  to  this 
lapsed  half,  on  the  ground  that  the  heir  takes  every  interest  in  land 
not  actually  disposed  of  by  his  ancestor,  and  that  testator  never  in- 
tended to  deprive  him  of  the  real  estate  directed  to  be  converted, 
except  so  far  as  necessary  for  the  purposes  of  the  will.  This  principle 
also  applies  to  the  converse  case  of  money  directed  to  be  laid  out 
in  the  purchase  of  real  estate  devised  to  uses  which  partially  fail; 
for  the  undisposed  of  interest  in  the  money  will  result  for  the  benefit 
of  testator's  next  of  kin  or  residuary  legatees,  and  will  not  go  to  the 
heir  at  law.147 

A  material  distinction,  however,  exists  as  to  the  persons  who  reap 
the  benefit  where  a  conversion  partially  fails,  when  it  is  directed  by 
will  and  when  it  is  directed  by  deed.  Suppose,  for  instance,  a  con- 
veyance of  real  estate  in  trust  to  pay  the  rents  and  profits  to  the 
grantor  during  life,  and  after  his  death  to  sell  and  pay  one-half 

144  Clarke  v.  Franklin,  4  Kay  &  J.  257;    Ripley  v.  Waterworth,  7  Ves.  435 
Smith  v.  Claxton,  4  Madd.  492. 

145  Cogan  v.  Stephens,  5  Law  J.  Ch.  17. 

146 1  Brown,  Ch.  503.  This  case  is  celebrated,  not  only  because  of  the 
point  of  law  decided,  but  also  because  Lord  Eldon,  then  John  Scott,  earned 
his  earliest  laurels,  and  laid  the  foundation  of  his  fortunes,  by  his  argument 
in  behalf  of  the  heir. 

147  Cogan  v.  Stephens,  5  Law  J.  Ch.  17;  Hawley  v.  James,  5  Paige,  318; 
Phillips  v.  Ferguson,  85  Va.  509,  8  S.  E.  211. 


78  THE    DOCTRINES    OF    EQUITY.  [Cll.   4 

of  the  proceeds  to  A.,  if  then  living,  and  the  other  half  to  B.,  if  then 
living.  We  have  seen  that,  if  both  die  during  the  grantor's  lifetime, 
the  trust  for  conversion  fails  altogether,  and  the  land  descends  to 
ilic  grantor's  heirs.  If,  however,  A.  alone  dies,  the  case  is  different. 
The  ((.incision  must  take  place  to  satisfy  the  trust  for  B.,  and  A.'s  un- 
disposed of  share  is  also  personal ty.  When  did  it  become  so?  Ac- 
cording  to  the  rule  heretofore  stated,  when  the  deed  became  oper- 
ative; i.  e.  on  its  execution  and  delivery,  and  not  on  the  death  of 
the  grantor.  On  A.'s  death,  therefore,  during  the  grantor's  lifetime, 
this  undisposed  of  share  resulted  immediately  to  the  grantor  as 
personal  property,  and  on  the  grantor's  death  it  will  devolve  as  such, 
aud  will  not  descend  to  his  heir  as  real  estate.148  On  the  same  rea- 
soning, money  directed  by  deed  to  be  laid  out  in  land  will,  on  a  par- 
tial  failure  of  the  objects  of  the  conversion,  result  to  the  grantor's 
heir,  and  not  to  his  next  of  kin.149 

SAME— DOUBLE    CONVERSION. 

50.  Double  conversion  takes  place  -where  land  is  directed 
to  be  sold,  and  the  proceeds  reinvested  in  other  lands,  or 
where  money  is  directed  to  be  invested  in  land  -which  is 
to  be  resold  before  making  distribution;  and  in  such  a  case 
the  court  will  treat  the  property  as  already  converted  into 
that  species  of  property  into  -which  it  is  directed  to  be 
changed,  no  matter  whether  the  steps  are  more  or  less 
numerous.150 

Thus,  land  in  Michigan  directed  to  be  sold  for  the  purpose  of  in- 
vesting the  proceeds  in  Missouri  land  was  treated  by  the  court  as 
though  it  were  Missouri  land;161  and  a  direction  in  a  will  to  in- 
vest money  in  land  for  testator's  widow  for  life,  and  to  sell  the  land 
after  her  death,  and  divide  the  proceeds  among  the  children,  was 
held  to  work  a  double  conversion  from  her  death.1" 

"8  Clarke  v.  Franklin,  4  Kay  &  J.  257. 

149  Wheldale  v.  Partridge,  8  Ves.  236;   Lechmere  v.  Lechmere,  Cas.  t  Talb. 
80. 
iso  Pearson  v.  Lane,  17  Ves.  101;   Ford  v.  Ford,  80  Mich.  42,  44  N.  W.  1057. 
i5i  Ford  v.  Ford,  80  Mich.  42,  44  N.  W.  1057. 
"2  De  Vaughn  v.  McLeroy,  82  Ga.  687,  10  S.  E.  211. 


Ch.  4]  CONVERSION.  79 


SAME— RECONVERSION. 

51.  Reconversion  is  that  notional  or  imaginary  process 
by  which  a  prior  constructive  conversion  is  annulled  and 
taken  away,  and  the  constructively  converted  property 
restored,  in  contemplation  of  a  court  of  equity,  to  its  orig- 
inal actual  quality.153 

Thus,  where  money  is  directed  to  be  invested  in  land  in  fee  simple 
for  A.'s  benefit,  equity  will  regard  the  money  as  land;  but  A.,  being 
absolutely  entitled,  may  elect  to  take  the  property  in  its  original 
form;  and  in  that  event  "equity,  which,  like  nature,  does  nothing  in 
vain,"154  will  treat  the  property  as  reconverted  into  money;  for  it 
would  evidently  be  vain  and  useless  to  insist  that  a  person  should 
take  a  fund  in  the  quality  of  land  when  he  perfers  it  in  the  form  of 
money,  and  can  at  any  moment  reduce  it  to  that  form  by  sale.155 
Since,  however,  a  person  under  disability,  such  as  an  infant  or  a 
lunatic,  cannot  exercise  the  right  of  election,  it  follows  that  there 
can  be  no  reconversion '  of  property  belonging  either  to  an  infant156 
or  a  lunatic.187 

i53Haynes,  Eq.  p.  365;    Snell,  Eq.  p.  229. 

154  Seeley  v.  Jago,  1  P.  Wms.  3S9. 

155  Bayley  v.  Bishop,  9  Ves.  6;  De  Vaughn  v.  McLeroy,  82  Ga.  687,  10  S. 
E.  211;   Hetzel  v.  Barber,  69  N.  Y.  1,  11. 

156  Seeley  v.  Jago,  1  P.  Wms.  389;  Carr  v.  Branch,  85  Va.  597,  604,  8  S.  E. 
476. 

157  in  re  Wharton,  5  De  Gex,  M.  &  G.  33;  Ashby  v.  Palmer,  1  Mer.  296, 


60  DOCTRINES    OF   EQUITY.  [Oh.  5 


CHAPTER  V. 

DOCTRINES  OF  EQUITY  (Continued)— CONFLICTING  RIGHTS  OF 
PURCHASERS,  ASSIGNEES,  ETC. 

52.  Notice 

53.  Classification. 

54.  Actual  Notice. 

55.  Constructive  Notice. 

56.  Notice  of  Fact  is  Notice  of  Cause. 

57.  Possession  as  Notice. 

58.  Recitals  in  Title  Papers. 

59.  Notice  to  Agent 

60.  Notice  by  record. 

61.  Lis  Pendens. 

62.  Bona   Fide  Purchasers. 
63-67.  Priorities— Unequal  Equities. 
68-70.  Equal  Equities. 

NOTICE. 

52.  Notice  is  the  transmission,  to  the  party  under  con- 
sideration, of  certain  information  respecting  facts  directly 
or  indirectly  affecting  his  rights  or  liabilities,  as  viewed 
by  a  court  of  equity,  in  relation  to  certain  property.1 

The  principles  or  maxims  which  govern  the  conflicting  rights  of 
assignees,  including  under  that  term  purchasers,  mortgagees,  and 
persons  having  liens,  are,  broadly  speaking:  "Where  the  equities  of 
the  rival  claimants  are  equal,  the  law  prevails;"  and  "Where  the  equi- 
ties are  equal,  and  there  is  no  legal  estate  in  any  claimant,  the  first 
in  order  of  time  prevails."  To  these  might  be  added  a  third :  "When 
the  equities  are  not  equal,  he  who  has  the  better  equity  takes 
precedence."     These  principles  are  plain  and  comprehensible  in  them- 

i  Smith,  Pr.  Eq.  p.  309.  In  2  Pom.  Eq.  Jur.  §  594,  "notice"  is  defined  as 
"the  information  concerning  a  fact  actually  communicated  to  a  party  by  an 
authorized  person,  or  actually  derived  by  him  from  a  proper  source,  or  else 
presumed  by  law  to  have  been  acquired  by  him,  which  information  is  regarded 
as  equivalent  in  its  legal  effects  to  full  knowledge  of  the  fact,  and  to  which 
the  law  attributes  the  same  consequences  as  would  be  imputed  to  knowledge," 


Ch.  5]  NOTICE.  81 

selves;  but  the  great  difficulty,  as  in  all  matters  of  law,  is  in  their 
proper  application  to  complicated  facts;  and  obviously  the  first 
inquiry  must  always  be  whether  the  equities  are  in  fact  equal,  or 
whether  one  is  not  on  the  whole  better  than  the  other.  This  in- 
quiry in  many  cases  resolves  itself  into  the  question  whether  one  of 
the  claimants  took  with  notice  of  a  prior  equitable  right  in  another; 
for,  if  he  did,  he  takes  subject  to  that  right.  What,  therefore,  is  no- 
tice? It  should  be  observed  that  "notice"  and  "knowledge"  are 
not  synonymous.  The  record  in  the  proper  office  of  a  properly  ex- 
ecuted deed  is  notice  of  its  existence  and  of  all  facts  therein  recited 
to  all  persons  thereafter  dealing  with  the  property  which  it  covers, 
though  they  may  in  fact  have  no  knowledge  of  its  existence.  On  the 
other  hand,  a  deed  defectively  executed  or  not  recorded  in  the  proper 
place  is  not  notice  to  any  one;  but,  nevertheless,  one  may  have 
knowledge  of  its  existence  by  having  actually  seen  it,  or  the  improp- 
erly recorded  copy.2  While,  therefore,  notice,  or  "the  transmission 
of  information  respecting  certain  facts,"  may  in  some  cases  produce 
knowledge,  yet  there  are  other  cases  where  notice  without  knowledge 
exists.  Of  course,  where  there  is  knowledge,  notice,  as  legally  and 
technically  understood,  becomes  immaterial.3 

SAME— CLASSIFICATION. 

53.  Notice  may  be  classified  as  either: 

(a)  Actual,  or 

(b)  Constructive. 

SAME— ACTUAL  NOTICE. 

54.  Actual  notice  is  either  knowledge  of  a  fact,  or  the 
conscious  possession  of  means  of  knowledge,  though  they 
may  not  be  used.4 

Actual  notice  may  be  express  or  implied.  Express  notice  may 
be  proved  by  direct  evidence,  and  includes  actual  knowledge;   while 

2  2  Pom.  Eq.  Jur.  §  592. 

3  Cleveland  Woolen  Mills  v.  Sibert,  81  Ala.  140,  141,  1  South.  773. 

*  Drey  v.  Doyle,  99  Mo.  459,  12  S.  W.  2S7;    Speck  v.  Riggin,  40  Mo.  405; 
Maupin  v.  Emmons,  47  Mo.  304;   Mayor  v.  Whittington  (Md.)  27  Atl.  984. 
eq.jur.—  6 


82  DOCTRINES    OF    EQUITY.  [Ch.  5 

implied  aotice  is  established  by  proof  of  circumstances  from  which 
knowledge  is  inferable  as  a  fact8  Implied  notice,  which  is  equally 
actual  ootice,  arises  where  a  party  is  conscious  of  having  the  means 
of  knowing  a  fact,  though  he  may  not  employ  these  means  for  the 
purpose  of  gaining  further  information.8  The  distinction  between 
implied  not  ire  and  constructive  notice  is  extremely  important  in 
states  whose  statutes  declare  that  a  purchaser  with  "actual  notice" 
of  a  prior  unrecorded  deed  takes  subject  to  such  deed.  Some  of  the 
courts  have  limited  the  term  "actual  notice"  to  "actual  knowledge"; 7 
while  others  have  widened  it  so  as  to  embrace  matters  falling  within 
the  term  "constructive  notice."8  The  true  distinction  between  im- 
plied notice,  which  is  actual,  and  constructive  notice,  seems  to  be 

b  Knapp  v.  Bailey,  70  Me.  105.  0  Atl.  122;  Mayor  v.  Whittington  (Md.)  27 
Atl.  984;  Williamson  v.  Brown,  15  N.  Y.  354;  Brinkman  v.  Jones,  44  Wis. 
198;    Brown  v.  Volkening,  64  N.  Y.  7G. 

8  Rhodes  v.  Outcalt,  48  Mo.  370;   Mayor  v.  Whittington  (Md.)  27  Atl.  984. 

■  I. :iinb  v.  Pierce,  113  Mass.  72;  Crassen  v.  Swoveland,  22  Ind.  428;  Story, 
Eq.  Jur.  §  399.  In  England  the  terms  "actual"  and  "constructive"  notice 
are  d<  -lined  by  the  conveyancing  act  of  1882.  Actual  notice  is  defined  as 
"an  instrument,  fact,  or  thing  within  the  party's  own  knowledge";  and  con- 
st niftive  or  implied  notice  is  defined  as  "an  instrument,  fact  or  thing  which 
would  have  come  to  the  party's  knowledge  if  such  inquiries  and  inspections 
had  been  made  as  ought  reasonably  to  have  been  made  by  him,  or  which  (in 
the  same  transaction  with  respect  to  which  the  question  of  notice  arises)  have 
come  to  the  knowledge  of  his  counsel,  agent,  or  solicitors  as  such,  or  would 
have  come  to  the  knowledge  of  such  solicitor  or  agent  if  such  inquiries  or  inspec- 
tions had  been  made  as  ought  to  have  been  made  by  them."  The  above  defini- 
tion of  "actual  notice"  is  substantially  the  same  as  that  adopted  by  the 
Massachusetts  and  Indiana  courts;  and  it  has  the  merit  of  being  easily  com- 
prehended. But  the  American  courts  which  have  extended  the  meaning  of 
the  term  "actual  notice"  as  stated  in  the  text  were  impelled  to  do  so  by 
considerations  of  substantial  justice.  "Notice  must  be  held  to  be  actual  [with- 
in the  meaning  of  a  statute  declaring  that  a  purchaser  with  '  actual  notice ' 
of  a  prior  unrecorded  deed  takes  subject  to  mat  deed]  where  the  subsequent 
purchaser  has  actual  knowledge  of  such  facts  as  would  put  a  prudent  man 
on  inquiry,  which,  if  prosecuted  with  ordinary  diligence,  would  lead  to  actual 
notice  of  the  right  or  title  in  conflict  with  that  which  he  is  about  to  purchase. 
When  the  subsequent  purchaser  has  knowledge  of  such  facts,  it  becomes  his 
duty  to  make  inquiry;  and  he  is  guilty  of  bad  faith  if  he  neglects  to  do  so, 
and  consequently  he  will  be  charged  with  the  actual  notice  he  would  have 
received  it'  be  had  made  the  inquiry."     Brinkman  v.  Jones,  44  Wis.  498. 

-  .Mayor  v.  Whittington  (Md.)  27  Atl.  084,  which  holds  that  a  principal  has 


Ch.  5]  notice.  83 

that  implied  notice  is  an  inference  of  fact  as  to  the  existence  of 
information  drawn  by  the  jury  from  the  circumstances  proved,  with- 
out the  aid  of  a  legal  presumption;  while  constructive  notice  is  a 
presumption  of  law  which  is  for  the  court  where  the  facts  have  been 
ascertained.9 

Wliat  Constitutes  Actual  Notice. 

Vague  reports  from  persons  not  interested  in  the  property  do  not 
amount  to  actual  notice;  nor  do  mere  general  assertions  that  some 
other  person  claims  a  title.10  It  has  even  been  stated  that  the  notice 
must  be  given  by  some  person  interested  in  the  property,  or  his 
agent,  to  the  party  charged,  or  his  agent,  and  communicated  in  the 
same  transaction,  or  in  the  negotiation  leading  up  to  it.11  But  it 
is  believed  that  the  true  rule  is  that  knowledge  of  facts,  from  what- 
ever source  obtained,  which  are  sufficient  to  put  an  ordinarily  pru- 
dent man  on  inquiry,  will  charge  a  purchaser  with  actual  notice 
of  all  the  facts  which  such  an  inquiry  would  have  developed.12 

SAME— CONSTRUCTIVE  NOTICE. 

55.  Constructive  notice  is  a  legal  presumption  of  notice, 
either  arising  from  evidence  so  strong  that  the  court  will 
act  on  it  in  the  absence  of  contradiction,  or  existing  by- 
actual  notice  of  information  obtainable  by  his  agent  by  the  exercise  of  ordi- 
nary diligence. 

»Wade,  Notice,  §  40. 

io  Jolland  v.  Stainbridge,  3  Ves.  478;  Maul  v.  Rider,  59  Pa.  St.  172;  Chicago 
v.  Witt,  75  HI.  211;  Lambert  v.  Newman,  56  Ala.  623,  625,  626;  Parker  v. 
Foy,  43  Miss.  260,  266;  Bugbee's  Appeal,  110  Pa,  St  331,  1  Atl.  273;  Satter- 
field  v.  Malone,  35  Fed.  445. 

ii  Barnhart  v.  Greenshields,  9  Moore,  P.  C.  18;  Sugd.  Vend.  755;  Woods  v. 
Farmere,  7  Watts,  382,  387. 

12  Parkhurst  v.  Hosford,  21  Fed.  827,  835;  Lawton  v.  Gordon,  37  Cal.  202; 
Deetjen  v.  Richter,  33  Kan.  410,  6  Pac.  595;  Curtis  v.  Mundy,  3  Mete.  (Mass.) 
405;  Wilcox  v.  Hill,  11  Mich.  256;  Lloyd  v.  Banks,  3  Ch.  App.  4SS.  In  this 
last  case  it  was  said,  speaking  of  a  trustee  who  had  merely  seen  an  insolvency 
mentioned  in  a  newspaper:  "If  it  can  be  shown  that  in  any  way  the  trustee 
had  got  knowledge  of  that  kind,  knowledge  which  would  operate  on  the 
mind  of  any  rational  man  or  man  of  business,  and  make  him  act  with  refer- 
ence to  the  knowledge  he  has  or  acquired,— then  I  think  the  end  is  attained." 


84  DOCTRINES    OF   EQUITY.  [Cll.   5 

virtue  of  positive  statutes,  such  as  the  recording  acts  of  the 
various  states.13 

As  a  general  rule,  if  a  person  has  notice,  it  is  entirely  immaterial 
whether  that  notice  is  actual  or  constructive;  the  distinction  being 
important,  as  before  stated,  only  in  those  cases  where  a  statute  re- 
quires actual  notice.14  Constructive  notice,  like  constructive  fraud, 
indicates  that  the  presumption  of  certain  facts  is  so  strong  that  it 
cannot  be  safely  ignored,  though  the  actual  fact  (the  transmission  of 
information)  may  be  unsupported  by  positive  evidence.15 

The  following  are  some  of  the  rules  formulated  by  courts  and  text 
writers  respecting  the  doctrine  of  notice: 


SAME— NOTICE  OF  FACT  IS  NOTICE  OF  CAUSE. 

56.  Notice  of  a  fact  is  notice  of  its  causes;  or,  in  other 
words,  where  there  has  been  actual  notice  of  a  fact  which 
would  have  the  effect  of  putting  a  reasonable  person  on 
further  inquiry,  the  result  will  be  constructive  notice  of 
other  facts  which  would  be  elicited  by  such  inquiry.16 

The  visible  appearance  of  property  may  be  such  as  to  put  a  pur- 
chaser on  inquiry.     Thus,  the  existence  and  operation  of  a  railroad 
charge  the  purchaser  of  the  land  on  which  the  roadbed  is  located 
with  notice  of  the  extent  of  the  company's  right  of  way;17  and  the 
existence  and  use  of  passways  for  cattle  under  a  railroad  embank- 
ment charge  a  purchaser  of  the  railroad  with  constructive  notice  of 
the  adjoining  owner's  rights  in  the  passways.18     So,  also,  construc- 
ts Story,  Eq.  §  399;    Bisp.  Eq.  §  268;    1  Wade,  Notice,  §§  37-39;    Claflin  v. 
Lenheim,  06  N.  Y.  301,  30G;  Townsend  v.  Little,  109  U.  S.  504,  3  Sup.  Ct.  357; 
Simmons  Creek  Coal  Co.  v.  Doran,  142  U.  S.  417,  12  Sup.  Ct.  239. 
ii  Prosser  v.  Rice,  28  Beav.  G8,  74. 
is  Smith,  Pr.  Eq.  p.  310. 
ic  Smith,  Pr.  Eq.  p.  313. 

it  Campbell  v.  Indianapolis  &  V.  R.  Co.,  110  Ind.  490,  11  N.  E.  482;    Paul 
v.  ConnersviUe  &  N.  J.  R.  Co.,  51  Ind.  527. 

is  Rock  Island  &  P.  Ry.  Co.  v.  Dimick,  144  111.  628,  32  N.  E.  291;    Swan  v. 
Burlington,  C.  R.  &  N.  Ry.  Co.,  72  Iowa,  650,  34  N.  W.  457. 


Ch.  5]  notice.  85 

tive  notice  of  water  rights  incumbering  property  was  held  to  result 
from  a  mill  race  and  dam  on  the  land.19 

This  rule  is  also  illustrated  by  a  series  of  English  cases,  which  hold 
that  actual  notice  that  title  deeds  to  land  are  in  the  hands  of 
another  is  constructive  notice  of  any  charge  which  he  may  have 
thereon.20 

SAME— POSSESSION  AS  NOTICE. 

57.  Visible  and  notorious  possession  of  lard  is  notice  of 
the  possessor's  title  to  subsequent  purchasers  and  incum- 
brancers.21 

The  foregoing  proposition  has  been  embodied  in  our  law  ever  since 
Lord  Thurlow's  time.22  The  possession  and  occupation  must  be  ac- 
tual, open,  and  visible;  it  must  not  be  equivocal,  occasional,  or  for 
a  special  temporary  purpose;  neither  must  it  be  consistent  with  the 
title  of  the  apparent  owner  by  the  record.23  If  the  possession  is  of 
this  character,  then  the  purchaser's  ignorance  of  the  occupancy  is 
immaterial,  for  it  is  the  purchaser's  duty  to  ascertain  in  advance 
who  is  in  possession.24  If,  on  the  other  hand,  the  purchaser  does 
know  of  such  occupancy,  he  is  put  on  inquiry  as  to  the  possessor's 
title,  and  will  therefore  be  presumed  to  be  aware  of  all  equities  of  the 
occupier  in  the  land  which  would  have  been  disclosed  on  such  in- 
quiry.25 It  therefore  follows  that  possession  of  land  by  a  vendee 
under  an  unrecorded  contract  of  sale  is  notice  of  his  equities  to  a  sub- 
is  Raritan  Water-Power  Co.  v.  Veghte,  21  N.  J.  Eq.  463.  The  existence  of 
an  archway  is  notice  of  a  right  of  way  under  it.  Davies  v.  Sear,  L.  R.  7 
Eq.  427.  And  the  existence  of  a  sea-wall  is  notice  of  an  obligation  for  its 
maintenance  and  repair.  Morland  v.  Cook,  L.  R.  6  Eq.  252. 
20  Birch  v.  Ellames,  2  Anstr.  427;  Maxfleld  v.  Burton,  L.  R.  17  Eq.  15. 
2i  Holmes  v.  Powell,  8  De  Gex,  M.  &  G.  572,  580,  581;  Phelan  v.  Brady, 
119  N.  Y.  587,  23  N.  E.  1109;  Smith  v.  Reid,  134  N.  Y.  568,  31  N.  E.  1082; 
Petrain  v.  Kiernan,  23  Or.  455,  32  Pac.  158. 

22  Taylor  v.  Stibbert,  2  Ves.  Jr.  437. 

23  Brown  v.  Volkening,  64  N.  Y.  76,  83;  Townsend  v.  Little,  109  U.  S.  504, 
3  Sup.  Ct.  357;   Atwood  v.  Bearss,  47  Mich.  72,  10  N.  W.  112. 

24  Sheerer  v.  Cuddy,  85  Cal.  270,  24  Pac.  713;  Hodge  v.  Amerman,  40  N.  J. 
Eq.  99,  104,  2  Atl.  257;  Wickes  v.  Lake,  25  Wis.  71;  Dutton  v.  Warschauer, 
21  Cal.  609;   Honzik  v.  Delaglise,  65  Wis.  499,  27  N.  W.  171. 

25  Rogers  v.  Jones,  8  N.  H.  264;   Rogers  v.  Hussey,  36  Iowa,  664. 


DOCTRINES    OF    EQUITY.  [Cll.   5 

sequent  purchaser  from  the  common  vendor,26  and  possession  of  a 
ui  que  trust  is  notice  of  his  rights,  though  the  legal  title  is  in 
another.27  So,  also,  possession  of  a  tenant  is  constructive  notice  of 
the  terms  of  his  tenancy;28  but  on  the  question  whether  it  is  also 
notice  of  the  landlord's  title  the  authorities  are  divided.29  So,  also, 
there  is  a  division  of  authority  on  the  question  whether  possession 
by  a  vendor  after  the  delivery  of  his  deed  is  notice  of  any  right  or 
interest  which  he  may  have  in  the  land.  Some  cases  hold  that  the 
deed  is  conclusive  that  the  vendor  reserves  no  interest  in  the  land, 
and  that  a  purchaser  from  the  grantee  has  a  right  to  assume,  with- 
out inquir}r,  that  the  vendor  is  in  possession  merely  for  a  temporary 
purpose,  as  tenant  at  sufferance  of  the  grantee.30  Other  cases,  with 
probably  the  better  reason,  hold  that  the  vendor's  possession,  after 
the  delivery  of  his  deed,  is  a  fact  inconsistent  with  its  legal  effect, 
and  is  suggestive  that  he  still  retains  some  interest  in  the  premises, 
and  that,  therefore,  his  possession  is  as  effectual,  as  notice,  as  that 
of  a  stranger  to  the  record  title.31 

28  White  v.  Patterson,  139  Pa.  St.  429,  21  Atl.  3G0;  Strickland  v.  Kirk,  51 
Miss.  Tor..  797;  Tunison  v.  Chamblin,  88  PI.  378,  390;  Jaeger  v.  Hardy,  48 
Ohio  St.  335,  27  N.  E.  863;   Phelan  v.  Brady,  119  N.  Y.  587,  23  N.  E.  1109. 

27  retrain  v.  Kiernan,  23  Or.  455,  32  Pac.  158;  Hawley  v.  Geer  (Tex.  Sup.) 
17  S.  W.  914. 

as  Taylor  v.  Stibbert,  2  Ves.  Jr.  437;  Cunningham  v.  Pattee,  99  Mass.  248; 
Thomas  v.  Burnett,  128  111.  37,  21  N.  E.  352. 

29  The  following  cases  hold  that  it  is:  Dickey  v.  Lyon,  19  Iowa,  545; 
Bowman  v.  Anderson,  82  Iowa,  210,  47  N.  W.  10S7;  Levy  v.  Holberg,  67  Miss. 
526,  7  South.  431;  Edwards  v.  Thompson,  71  N.  C.  177,  181;  O'Rourke  v. 
O'Connor,  39  Cal.  442,  446.  That  it  is  not:  Flagg  v.  Mann.  2  Sumn.  486, 
557,  Fed.  Cas.  No.  4,847;  Beatie  v.  Butler,  21  Mo.  313;  Jones  v.  Smith,  1 
Hare,  43,  63. 

30  Van  Keuren  v.  Cent.  R.  Co.,  38  N.  J.  Law,  165,  167;  Dodge  v.  Davis,  85 
Iowa,  77,  52  N.  W.  2;  Exon  v.  Dancke  (Or.)  32  Pac.  1045;  Rankin  v.  Coar, 
46  N.  J.  Eq.  566,  22  Atl.  177;  Hafter  v.  Strange,  65  Miss.  323,  3  South.  190; 
Eylar  v.  Eylar,  60  Tex.  315;  Scott  v.  Gallagher,  14  Serg.  &  R.  333,  334;  New- 
hall  v.  Pierce,  5  Pick.  450. 

si  Illinois  Cent.  R.  Co.  v.  McCullough,  59  111.  166;  Groff  v.  State  Bank,  50 
Minn.  234,  52  N.  W.  651;  Turman  v.  Bell,  54  Ark.  273,  15  S.  W.  8S6;  Stevens 
v.  Hulin,  53  Mich.  93,  18  N.  W.  569;  McKecknie  v.  Hoskins,  23  Me.  230;  Pell 
v.  McElroy,  36  Cal.  268;   Hopkins  v.  Garrard,  7  B.  Mon.  312. 


Ch.  5]  notice.  87 


SA.ME— RECITALS  IN  TITLE  PAPERS. 

58.  One  claiming  title  to  land  is  chargeable  with  notice 
of  every  matter  affecting  the  estate  -which  appears  on  the 
face  of  any  instrument  in  his  chain  of  title,  and  of  every 
matter  he  would  have  learned  by  any  inquiry  suggested 
by  the  recitals  in  any  such  deed. 

It  is  the  duty  of  a  purchaser  of  real  estate  to  inspect  all  the  title 
papers  in  his  vendor's  chain  of  title,  and  he  is  therefore  conclusively 
presumed  to  know  every  matter  affecting  the  title  which  appears 
therein,  and  also  in  ail  other  deeds  and  instruments  recited  or  re- 
ferred to  therein  as  limiting  or  affecting  the  title  to  the  property 
conveyed.82  It  has  even  been  held  that  a  person  is  not  excused  from 
inspecting  a  deed,  which  he  knows  affects  the  land,  by  the  vendor's 
statement  that  it  contains  nothing  which  renders  an  inspection  nec- 
essary,33 though  it  is  otherwise  where  the  purchaser  does  not  know 
that  the  land  is  affected  by  a  prior  deed  or  settlement,  and  is  told  by 
the  vendor  that  it  is  not.34      So,  also,  the  fact  that  a  deed  or  instru- 

32  Moore  v.  Bennett,  2  Ch.  Cas.  246;  Bacon  v.  Bacon,  Toth.  133;  Bisco  v. 
Earl  of  Banbury,  1  Ch.  Cas.  287;  Wilson  v.  Hart,  1  Ch.  App.  4G3;  Deason  v. 
Taylor,  53  Miss.  697;  Wiseman  v.  Hutchinson,  20  Ind.  40;  Burch  v.  Carter, 
44  Ala.  115;  Major  v.  Bukley,  51  Mo.  227,  231;  Willis  v.  Gay,  48  Tex.  463; 
Pringle  v.  Dunn,  37  Wis.  449,  464;  Baker  v.  Mather,  25  Mich.  51,  53;  Acer  v. 
Westcott,  46  N.  Y.  384;  White  v.  Foster,  102  Mass.  375,  380;  Smith  v. 
Burgess,  133  Mass.  513;  Roll  v.  Rea,  50  N.  J.  Law  264,  12  Atl.  905;  Seiber- 
ling  v.  Tipton  (Mo.  Sup.)  21  S.  W.  4.  The  practical  applications  and  illustra- 
tions of  this  rule  are  very  numerous.  Where,  under  a  description  in  a  deed, 
resort  must  be  had  to  a  prior  deed  to  locate  the  same,  and  the  prior  deed  so 
describes  the  land  that  a  person  reading  it  would  discover  something  had  been 
omitted  from  the  description  therein,  the  purchaser  is  put  on  inquiry,  and  will 
be  charged  with  notice  of  wliat  an  inquiry  would  have  revealed.  Simmons 
Creek  Coal  Co.  v.  Doran,  142  "u.  S.  417,  12  Sup.  Ct.  239.  Notice  of  a  lease 
is  notice  of  the  covenants  therein.  Taylor  v.  Stibbert,  2  Ves.  Jr.  437.  A 
recital  in  a  deed  that  the  purchase  money  is  unpaid  is  notice  of  a  vendor's 
lien  to  a  subsequent  purchaser  from  the  grantor.  Deason  v.  Taylor,  53 
Miss.  697;  Tydings  v.  Pitcher,  82  Mo.  379;  Wiseman  v.  Hutchinson,  20  Ind. 
40;   Willis  v.  Gay,  48  Tex.  463. 

33  Patman  v.  Harland,  17  Ch.  Div.  355. 
s*  Jones  v.  Smith,  1  Hare,  43. 


DOCTRINES    OF    EQUITY.  [Ch.   5 

ment  affecting  the  title  has  not  been  recorded  is  entirely  immaterial 
if  11  is  referred  to  in  the  chain  of  title.35 

The  rule,  however,  does  not  operate  so  as  to  charge  a  purchaser 
with  constructive  notice  of  a  recital  wholly  foreign  to  the  purposes 
of  the  instrument;88  nor  does  it  apply  to  collateral  and  immaterial 
instruments  incidentally  referred  to,  not  relating  in  any  way  to  the 
titje  or  property  conveyed,  but  only  to  the  consideration.37 

SAME— NOTICE  TO  AGENT. 

59.  Notice  to  an  agent,  as  to  matters  within  the  scope  of 
his  agency,  is  constructive  notice  to  the  principal. 

Various  reasons  have  been  assigned  for  this  rule.  Some  of  the 
rases  hold  that  it  rests  on  the  legal  identity  of  the  principal  and 
agent;88  others,  that  it  rests  on  the  duty  of  the  agent  to  communi- 
cate his  knowledge  to  the  principal,  and  that  he  is  therefore  con- 
clusively presumed  to  have  so  communicated  it.39  The  true  reason 
probably  is  that,  where  the  principal  has  consummated  a  transac- 
tion in  whole  or  in  part  through  an  agent,  it  is  contrary  to  equity 
and  good  conscience  that  he  should  be  permitted  to  avail  himself  of 
the  benefits  of  his  agent's  participation  without  becoming  respon- 
sible, as  well  for  his  agent's  knowledge  as  for  his  agent's  acts.40 

as  Hancock  v.  McAvoy,  151  Pa.  St.  439,  25  Atl.  48;  Martin  v.  Neblett,  86 
Tenn.  383,  7  S.  W.  123;  Aetna  Life  Ins.  Co.  v.  Bishop,  69  Iowa,  645,  29  N. 
W.  761;  Central  Trust  Co.  v.  Wabash,  St.  L.  &  P.  R.  Co.,  29  Fed.  546; 
Baker  v.  Mather,  25  Mich.  51;   White  v.  Foster,  102  Mass.  375,  3S0. 

36  2  Pom.  Eq.  Jur.  §  629;  Burch  v.  Carter,  44  Ala.  115,  117.  A  purchaser 
of  land  is  not  chargeable  with  constructive  notice  of  a  clause  in  a  deed  in 
his  chain  of  title  reserving  a  lien  for  the  purchase  price  of  personalty  also 
conveyed  by  the  deed.     Mueller  v.  Engeln,  12  Bush.  441. 

3T  Kansas  City  Land  Co.  v.  Hill,  87  Tenn.  5S9,  11  S.  W.  797,  citing  Bigelow, 
Estop.  341;   2  Devi.  Deeds,  §§  1000,  1006. 

38  Boursot  v.  Savage,  L.  R.  2  Eq.  134. 

so  Thompson  v.  Cartwright,  33  Beav.  178;  Barnes  v.  Trenton  Gaslight  Co., 
27  N.  J.  Eq.  35. 

40  2  White  &  T.  Lead.  Cas.  Eq.  (4th  Am.  Ed.)  179,  note;  Irvine  v.  Grady, 
85  Tex.  120,  19  S.  W.  1028;  Hickman  v.  Green  (Mo.  Sup.)  22  S.  W.  455.  In 
this  last  case  a  married  woman  under  the  disabilitjr  of  coverture  was  held 
chargeable  with  her  agent's  knowledge,  the  court  saying:     "She  cannot  be 


Ch.  5]  notice.  89 

As  to  the  time  when  the  knowledge  must  come  to  the  agent  to 
bind  the  principal,  there  has  been  no  little  diversity  of  opinion.  As 
long  ago  as  1684,  Lord  North  said:41  ''Though  notice  to  a  man's 
counsel  be  notice  to  the  party,  yet,  where  the  counsel  comes  to  have 
notice  of  the  title  in  another  affair  which  it  may  be  he  has  forgot 
when  his  client  comes  to  advise  with  him  a  case  of  other  circum- 
stances, that  shall  not  be  such  a  notice  as  to  bind  the  party."  Lord 
'Keeper  Bridgman,  in  an  earlier  case,  had  asked,  with  the  feeling 
of  one  who  had  been  a  fashionable  conveyancer,  whether  counsel 
could  be  expected  to  remember  forever.  In  England  a  statute  now 
requires  that  the  notice  must  come  to  the  agent  in  the  same  transac- 
tion with  respect  to  which  the  controversy  arises; 42  and  this  is  also 
the  doctrine  judicially  announced  by  some  of  the  American  courts.43 
But  in  this  country  the  weight  of  authority  seems  to  incline  in  favor 
of  the  proposition  that,  if  a  fact  is  actually  recollected  and  present 
in  the  mind  of  an  agent  while  acting  for  his  principal  in  a  particular 
transaction  or  matter,  the  principal  is  chargeable  with  constructive 
notice  of  the  fact  as  respects  such  transaction  or  matter,  regardless 
of  whether  the  knowledge  was  obtained  by  the  agent  during  the  trans- 
action, or  even  during  the  agency.44  However,  to  charge  the  prin- 
cipal with  knowledge  possessed  by  an  agent,  the  fact  of  which  the 
agent  has  notice  must  be  within  the  scope  of  his  agency.  As  the 
question  whether  the  principal  is  bound  by  contract  entered  into 

permitted  to  flaunt  her  disability  in  the  face  of  a  court  of  equity;  assert 
she  had  no  notice  because  she  could  have  no  agent;  and  still,  at  the  same 
time,  claim  and  hold  under  the  questionable  services  of  the  very  person 
whom  she  employed  in  that  fiduciary  capacity."  See,  also,  Whitehead  v. 
Wells,  29  Ark.  99;  Winchester  v.  Baltimore  &  S.  R.  Co.,  4  Md.  231. 
4i  Preston  v.  Tubbin,  1  Vern.  286. 

42  Conveyancing  Act,  1882. 

43  Houseman  v.  Girard  Mut.  Bldg.  &  L.  Ass'n,  81  Pa.  St  256,  262;  Barbour 
v.  Wiehle,  116  Pa.  St.  308,  9  Atl.  526;  Bierce  v.  Red  Bluff  Hotel  Co.,  31  Cal. 
160;  Pringle  v.  Dunn,  37  Wis.  449.  Knowledge  of  an  agent  is  not  constructive 
notice  to  his  principal,  unless  acquired  after  the  agency  was  created.  Wheeler 
v.  McGuire,  86  Ala.  398,  5  South.  190. 

44  The  Distilled  Spirits,  11  Wall.  356;  Holden  v.  New  York  &  E.  Bank,  72 
N.  Y.  286,  292;  Abell  v.  Howe,  43  Vt.  403;  Patten  v.  Merchants'  &  F.  M. 
F.  Ins.  Co.,  40  N.  H.  375;  Snyder  v.  Partridge,  138  HI.  173,  29  N.  B.  851; 
Burton  v.  Perry,  146  111.  71,  34  N.  E.  73;  Lebanon  Sav.  Bank  v.  Hollenbeck, 
29  Minn.  322,  13  N.  W.  145. 


90  DOCTRINES    OF    EQUITY.  [Cll.   5 

by  the  agent  depends  on  the  nature  and  extent  of  the  agency,  so  does 
the  effect  upon  the  principal  of  notice  to  the  agent  depend  on  the 
same  conditions.45 


SAME— NOTICE  BY  RECORD. 

60.  By  virtue  of  statutes  in  all  the  American  states,  the 
recordation  in  the  proper  place  of  a  properly  executed,  in- 
strument affecting  title  to  land  operates  as  constructive 
notice  of  its  contents,  and  of  the  rights  and  estates  created 
by  it,  to  subsequent  purchasers  or  incumbrancers  under 
the  same  grantor. 

The  object  of  the  recording  acts  in  the  various  states  is  to  es- 
tablish a  permanent  method  by  which  the  exact  state  of  the  title  to 
real  estate  may  be  easily  discovered,  and  thus  to  protect  subsequent 
bona  fide  purchasers; 46  and  this  object  is  generally  accomplished  by 
declaring  that  conveyances  of  land  not  recorded  shall  be  void  as 
against  subsequent  bona  fide  purchasers  or  incumbrancers  whose  con- 
veyances are  first  recorded.  The  ground  on  which  these  statutes  are 
based  is  that  a  grantee  who  fails  to  record  his  muniment  of  title 
places  it  in  the  power  of  his  grantor  to  commit  a  fraud  on  others, 
and  the  law  considers  him  as  assisting  the  grantor  to  do  this  and 
holds  him  responsible  accordingly.47 

Since  constructive  notice  by  record  is  purely  a  statutory  creation, 
there  must  be  a  compliance  with  all  the  statutory  requirements.48 
Therefore  the  record  of  a  deed  not  executed  40  or  acknowledged  50  as 

45  Trentor  v.  Pothen,  46  Minn.  298,  49  N.  W.  129.  In  this  case  it  was  held 
that  one  who  employs  an  attorney  for  the  special  purpose  of  examining  an 
abstract  of  title  to  land  is  not  charged  with  constructive  notice  of  the  attor- 
ney's knowledge,  acquired  in  another  transaction,  of  the  pendency  of  a  suit 
which  may  affect  the  title  to  the  land. 

4«  Wade,  Notice,  §  96;  2  Pom.  Eq.  Jur.  §  649;  Bird  v.  Dennison,  7  Cal.  297; 
Spielmann  v.  Kliest,  36  N.  J.  Eq.  202. 

47  Bird  v.  Dennison,  7  Cal.  297. 

48  2  Pom.  Eq.  Jur.  §  650. 

49  Proper  signature  necessary.  Shepherd  v.  Burkhalter,  13  Ga.  443.  Proper 
attestation  by  witness  necessary.  Pringle  v.  Dunn,  37  Wis.  449;  Carter  v. 
Champion,  8  Conn.  549;   White  v.  Denman,  1  Ohio  St.  110. 

GOJacoway  v.  Gault,  20  Ark.  190;    Blood  v.  Blood,  23  Pick.  80;    Reynolds 


Ch.  5]  NOTICE.  91 

required  by  statute,  or  not  delivered,61  does  not  operate  as  construc- 
tive notice.  So,  also,  it  must  be  recorded  in  the  proper  book  of 
records,52  and  within  the  county  where  the  land  lies,53  and  must 
definitely  describe  the  land.54 

Nor  does  the  record  of  a  conveyance  after  a  compliance  with  all 
statutory  requirements  operate  as  constructive  notice  to  all  the 
world.  The  object  of  the  recording  acts  is,  as  we  have  seen,  the 
protection  of  subsequent  bona  fide  purchasers.  The  registration  of 
a  deed  from  one  having  no  title  does  not  therefore  charge  the  lawful 
owner  with  notice  of  its  existence.55  In  other  words,  the  record  is 
notice  to  only  those  claiming  under  the  same  grantor,58  and  does  not 
operate  as  notice  retrospectively.57 

v.  Kingsbury,  15  Iowa,  238;  Emeric  v.  Alvarado,  90  CaL  444,  27  Pac.  350; 
Hayden  v.  Moffatt,  74  Tex.  647,  12  S.  W.  820. 

si  Parker  v.  Hill,  8  Mete.  (Mass.)  447.  But  delivery  to  the  recording  officer 
for  the  benefit  of  the  grantee  is  a  valid  delivery.  Withers  v.  Jenkins,  6  Rich 
(N.  S.)  122. 

52  Where  a  statute  requires  a  mortgage  to  be  recorded  in  "book  of  mort- 
gages," the  record  of  an  absolute  deed  intended  as  a  mortgage  is  not  con- 
structive notice  if  recorded  in  the  book  of  deeds.  McLanahan  v.  Reeside, 
9  Watts,  508;  Dey  v.  Dunham,  2  Johns,  Ch.  182;  Fisher  v.  Tunnard,  25 
La.  Ann.  179.  To  same  effect,  Gulley  v.  Macy,  84  N.  C.  434;  Ives  v.  Stone, 
51  Conn.  446  (where  there  is  no  such  express  statutory  requirement).  But, 
in  the  absence  of  express  statute,  the  record  of  a  conveyance,  absolute  in 
form,  being  notice  of  a  greater  interest  than  the  mortgagee  really  has,  must 
be  held  adequate  to  protect  his  rights,  and  be  treated  as  sufficient  notice  of 
his  actual  interest,  whatever  that  may  prove  to  be.  Marston  v.  Williams. 
45  Minn.  116,  47  N.  W.  644;  Kemper  v.  Campbell,  44  Ohio  St.  210,  6  N.  E. 
560;  Bank  of  Mobile  v.  Tishomingo  Sav.  Inst,  62  Miss.  250;  Knowlton  v. 
Walker,  13  Wis.  264. 

53  King  v.  Portis,  77  N.  C.  25;  Cohen  v.  Barton  (Md.)  21  Atl.  63;  Adams  v. 
Hayden,  60  Tex.  223;   Astor  v.  Wells,  4  Wheat.  466. 

54  Bailey  v.  Galpin,  40  Minn.  319,  41  N.  W.  1054. 

66  Bates  v.  Norcross,  14  Pick.  224;  Roberts  v.  Richards,  84  Me.  1,  24  Atl. 
425.  See,  also,  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151;  Stuyvesant  v.  Hone,  1 
Sandf.  Ch.  419. 

56  Losey  v.  Simpson,  11  N.  J.  Eq.  246;  Holmes  v.  Buckner,  67  Tex.  107,  2 
S.  W.  452;   Baker  v.  Griffin,  50  Miss.  158;   Roberts  v.  Bourne,  23  Me.  165. 

57  Wade,  Notice,  §  203;  2  Pom.  Eq.  Jur.  §  657;  Birne  v.  Main,  29  Ark.  591; 
Ward's  Ex'rs  v.  Hague,  25  N.  J.  Eq.  397. 


t)2  DOCTRINES    OF    EQUITY.  [Ch.   5 

•ce  of  Unrecorded  Deed. 
One  other  question  should  be  noticed  in  this  connection,  and  that 
is,  does  a  subsequent  purchaser,  who  buys  with  notice  of  a  prior 
unrecorded  conveyance,  take  subject  to  that  conveyance,  though  his 
is  first  placed  on  record?  It  was  held  by  the  English  chancery  court 
in  an  early  case,  which  has  been  followed  by  nearly  all  the  courts, 
both  in  England  and  America,  that  the  taking  of  a  deed  with  knowl- 
edge of  a  prior  unrecorded  deed  is  a  fraud  on  the  part  of  the  subse- 
quent purchaser,  and  that  he  therefore  takes  subject  to  the  prior 
deed.58  There  has  been  a  wide  diversity  of  opinion,  however,  as  to 
whether  the  subsequent  purchaser  must  have  actual  notice  of  the 
prior  unrecorded  conveyance,  or  whether  constructive  notice  alone 
is  sufficient.  The  earlier  English  cases  required  actual  notice.59  The 
statutes  of  some  of  our  states  also  require  "actual  notice,"  60  and  the 
decisions  in  other  states  are  to  the  same  effect;61  the  term  "actual 
notice"  being  construed  to  mean,  not  only  actual  knowledge,  but  the 
conscious  possession  of  means  of  knowledge,  as  heretofore  defined. 
Other  courts  have  held  constructive  notice  sufficient.62  On  principle, 
and  in  the  absence  of  express  statutes  requiring  actual  notice,  this 
would  seem  to  be  the  correct  doctrine.  Since  the  record  itself  is 
merely  constructive  notice  to  subsequent  purchasers,  any  other  no- 
tice, actual  or  constructive,  ought  to  be  a  substitute  for  the  record.63 

ss  Le  Neve  v.  Le  Neve  (1747)  Amb.  436,  2  White  &  T.  Lead.  Cas.  Eq.  (4th 
Am.  Ed.)  109.  Followed  in  Rolland  v.  Hart,  6  Ch.  App.  678;  Wyatt  v.  Bar- 
well,  19  Ves.  435;  Tuttle  v.  Jackson,  6  Wend.  213;  Britton's  Appeal,  45  Pa. 
St  172;  Wyatt  v.  Stewart,  34  Ala.  716.  Some  of  the  earlier  decisions  in  this 
country,  however,  hold  that  an  unrecorded  deed  is  void  as  to  subsequent 
purchasers  or  creditors  of  the  grantor,  whether  they  had  notice  or  not. 
Washington  v.  Trousdale,  Mart.  &  Y.  385;  Lillard  v.  Ruckers,  9  Yerg.  64; 
Mayham  v.  Coombs,  14  Ohio,  428. 

sa  Hine  v.  Dodd,  2  Atk.  275;  Jolland  v.  Stainbridge,  3  Yes.  478. 

«o  Maine,  Massachusetts,  Missouri,  Wisconsin,  and  perhaps  others. 

«i  Jackson  v.  Van  Valkenburgh,  8  Cow.  260;  Brown  v.  Yolkening,  64  N.  Y. 
70,  82. 

62  Porter  v.  Cole,  4  Me.  20;  Price  v.  McDonald,  1  Md.  414;  2  Pom.  Eq.  Jur. 
§  664;    Wade,  Notice,  §  251. 

03  2  Pom.  Eq.  Jur.  §  665. 


Cll.  5]  NOTICE.  93 


SAME— LIS  PENDENS. 

61.  In  the  absence  of  statutes,  one  who,  pending  a  suit 
to  reach  specific  property,  within  the  jurisdiction  of  the 
court  (other  than  negotiable  paper),  acquires  from  a  party 
thereto  any  interest  in  or  lien  on  that  property,  is  bound 
by  the  judgment  or  decree,  though  he  purchases  for  a  val- 
uable consideration,  and  -without  actual  notice  of  the  suit. 

The  subject  of  lis  pendens  is  usually  treated  as  forming  part  of  the 
equitable  doctrine  of  constructive  notice;64  but  in  truth  lis  pendens 
is  a  doctrine  common  to  courts  of  both  law  and  equity,65  and  rests  on 
public  policy  and  expediency,  as  it  would  plainly  be  impossible  that 
any  action  or  suit  could  be  brought  to  a  successful  termination  if 
alienations  pendente  lite  were  permitted  to  prevail.  The  plaintiff 
would  be  liable  in  every  case  to  be  defeated  by  the  defendant's  alienat- 
ing before  the  judgment  or  decree,  and  would  be  driven  to  commence 
his  proceedings  anew,  subject  again  to  be  defeated  by  the  same 
course  of  proceedings.68 

Prerequisites  for  Application  of  Doctrine. 

1.  To  warrant  the  application  of  the  doctrine,  the  litigation  must, 
in  the  first  place,  be  about  some  specific  thing  which  must  necessarily 
be  affected  by  the  termination  of  the  suit.67  While  the  doctrine  has 
found  its  chief  application  in  suits  involving  specific  realty,88  it  has 

«*  1  Story,  Eq.  Jur.  §  405;  Chancellor  Kent,  in  Murray  v.  Ballou,  1  Johns. 
Ch.  566. 

es  Sorrell  v.  Carpenter,  2  P.  Wms.  482;   2  Co.  Inst.  p.  375. 

ee  Bellamy  v.  Sabine,  1  De  Gex  &  J.  566,  578,  584;  Dovey's  Appeal,  97 
Pa.  St.  153;   Houston  v.  Timmerman,  17  Or.  499,  21  Pac.  1037. 

6t  There  has  been  some  diversity  of  opinion  as  to  whether  the  doctrine 
applies  to  an  action  for  divorce,  where  the  wife  seeks  to  charge  the  husband's 
realty  with  alimony.  The  general  and  better  rule  is  that  the  doctrine  does 
not  apply.  Scott  v.  Rogers,  77  Iowa,  483,  42  N.  W.  377;  Houston  v.  Timmer- 
man, 17  Or.  499,  21  Pac.  1037.  But  the  contrary  has  been  held  where  the 
particular  property  to  be  charged  was  described  in  the  complaint.  Wilkinson 
v.  Elliott,  43  Kan.  590,  23  Pac.  614;  Powell  v.  Campbell,  20  Nev.  232,  20  Pac. 
156. 

68  Center  v.  Bank,  22  Ala.  743;  Blanchard  v.  Ware,  43  Iowa,  530,  531; 
Chapman  v.  West,  17  N.  Y.  125. 


DOCTRINES    OF    EQUITY.  [Ch.   5 


in  soup-  cases  been  also  extended  to  suits  involving  specific  personal 
rty,'    other  than  negotiable  paper,  corporate  bonds,  etc.70 

2.  The  particular  property  involved  in  the  suit  must  be  so  definitely 
di  scribed  in  the  pleading  that  any  one  reading  it  can  learn  thereby 
what  property  is  intended  to  be  made  the  subject  of  litigation.71 

::.  To  make  the  pendency  of  a  suit  notice,  so  as  to  affect  the  con- 
science  of  the  purchaser,  it  is  essential  that  the  court  have  jurisdic- 
tion over  the  specific  thing  which  is  the  subject  of  litigation.72 

i.  The  jeopardy  of  being  a  purchaser  pendente  lite,  and  thus  taking 
subjecl  to  the  result  of  the  suit,  begins,  of  course,  with  its  com- 
mencement, and  continues  until  its  final  termination.  For  the  pur- 
of  the  doctrine  now  under  consideration,  and  in  the  absence  of 
statute,  the  suit  is  not  commenced  until  both  the  bill  is  filed  and  the 
process  is  served;73  and  it  continues  not  only  until  the  rendition 
of  final  judgment,74  but  until  a  reasonable  time  for  appeal  has 
elapsed." 

<io  Mortgages  and  other  securities  held  in  trust.  Murray  v.  Lylburn,  2 
Johns.  Ch.  441.  See,  also,  Fletcher  v.  Fen-ill,  9  Dana,  373;  M'Cutchen  v. 
Miller,  31  Miss.  GG;  Diamond  v.  Lawrence  Co.,  37  Pa.  St.  353;  Armstrong  v. 
Broom,  5  Utah,  17G,  13  Pac.  364.  Doctrine  applies  to  transfer  of  tax  certifi- 
cates.    Hixon  v.  Oneida  Co.,  82  Wis.  515,  52  N.  W.  445.  - 

•  o  Public  policy  does  not  require  that  the  doctrine  be  applied  to  transfers 
of  negotiable  paper,  stocks,  or  bonds.  On  the  contrary,  its  application  to 
such  property  would  work  great  mischief,  and  lead  to  great  embarrassments. 
Leitch  v.  Wells,  4S  N.  Y.  585,  613;  Farmers'  Loan  &  Trust  Co.  v.  Toledo  & 
S.  II.  R.  Co.,  4  C.  C.  A.  561,  54  Fed.  759;  Holbrook  v.  New  Jersey  Zinc  Co., 
57  X.  Y.  616;   Warren  Co.  v.  Marcy,  97  U.  S.  96. 

ii  Allen  v.  Poole,  54  Miss.  323,  333;  Houston  v.  Timmerman,  17  Or.  499, 
21  Pac.  1037;  Miller  v.  Sherry,  2  Wall.  237;  Russell  v.  Kirkbride,  62  Tex.  459. 
rrington  v.  Brents,  1  McLean  (U.  S.)  167,  Fed.  Cas.  No.  2,446;  Jones  v. 
Lnsk,  2  Mete.  (Ky.)  356.  Doctrine  does  not  apply  where  subject  of  litigation 
is  real  estate  located  outside  of  county.  Benton  v.  Shafer,  47  Ohio  St.  117, 
24  N.  E.  197. 

73  Franklin  Sav.  Bank  v.   Taylor,   131  111.  37G,  23  N.   E.  397;    Staples  v. 

White,  Handley  &  Co.,  88  Tenn.  30,  12  S.  W.  339;    Stone  v.  Tyree,  30  W.  Va. 

687,  5  S.  E.  878;    Duff  v.  McDonough,  155  Pa.  St.  10,  25  Atl.  60S;    Murray 

llou,  1  Johns.  Ch.  566;    Allen  v.  Poole,  54  Miss.  323,  324.     Different  rule 

by  virtue  of  statutes.     Burleson  v.  McDermott,  57  Ark.  229,  21  S.  W.  222; 

bscbild  v.  Kohn  (Ky.)  1!)  S.  W.  780. 

i*  Turner  v.  Crebill,  1  Ohio,  372;  Page  v.  Waring,  76  N.  Y.  463;  Worsley  v. 
Earl  of  Scarborough,  3  Atk.  392. 

-■  Moore  v.  Moore,  G7  Tex.  293,  3  S.  \V.  284.     A  purchaser  after  final  decree, 


Ch.  5]  BONA    FIDE    PURCHASERS.  95 

5.  Since  there  is  no  lis  pendens  as  against  a  person  not  a  party 
to  the  suit,  it  follows  that  a  purchaser  of  property  in  litigation  from 
a  person  not  a  party  thereto  is  not  chargeable  with  constructive 
notice.76 

Statutory  Enactments. 

In  England,  and  in  most  of  the  American  states,  it  is  now  provided 
by  statute  that  the  pendency  of  a  suit  does  not  affect  a  purchaser 
with  constructive  notice,  unless  notice  is  filed  in  some  designated 
public  office.  It  may  be  stated  as  a  general  proposition,  however, 
that  these  statutes  do  not  abrogate  the  foregoing  special  rules,  but 
merely  require  the  filing  of  the  proper  notice  before  they  come  into 
play.77 

BONA   FIDE    PURCHASERS. 

62.  A  bona  fide  purchaser  is  one  'who  for  a  valuable 
consideration  and  in  good  faith  acquires  property,  without 
notice,  when  the  consideration  is  paid,  of  the  adverse 
rights  of  others  therein. 

Valuable  Consideration. 

The  payment  of  a  valuable  consideration  is  necessary  to  con- 
stitute a  bona  fide  purchaser;  a  merely  good  consideration,  as 
love  and  affection,  is  not  sufficient.78  The  purchaser  must  pay  value 
or  make  advances  or  incur  liabilities  on  the  credit  of  his  vendor's 
apparent  title.79     Of  course,  money  or  money's  worth  is  always  a 

and  before  bill  of  review  is  filed,  is  not  a  purchaser  pendente  lite.  Ludlow 
v.  Kidd,  3  Ohio,  544.  Abandonment  or  voluntary  dismissal  of  suit  prevents 
application  of  doctrine.  Allison  v.  Drake,  145  HI.  500,  32  N.  E.  541;  Valen- 
tine v.  Austin,  124  N.  Y.  400,  26  N.  E.  973. 

™  Green  v.  Rick,  121  Pa.  St.  130,  15  Atl.  497;  Brundage  v.  Biggs,  25  Ohio 
St.  652,  656;   Carr  v.  Callaghan,  3  Litt.  365. 

77  2  Pom.  Eq.  Jur.  §  640,  and  cases  cited. 

78  Roseman  v.  Miller,  84  111.  297;  Everts  v.  Agnes,  4  Wis.  356;  Patten  v. 
Moore,  32  N.  H.  382;  Boon  v.  Barnes,  23  Miss.  136;  Aubuchon  v.  Bender,  44 
Mo.  560.  Moral  consideration  not  sufficient.  Peek  v.  Peek,  77  Cal.  106,  19 
Pac.  227.  Devisee  is  not  a  purchaser  for  value.  Jackson  v.  Lynch,  129  HI. 
72,  21  N.  E.  580,  and  22  N.  E.  246. 

79  Barnard  v.  Campbell,  58  N.  Y.  73;  Hoffman  v.  Noble,  6  Mete.  (Mass.) 
68;  Weaver  v.  Barden,  49  N.  Y.  2S6;  Dickerson  v.  Tillinghast,  4  Paige,  215. 
Roxborough  v.  Messick,  6  Ohio  St  448. 


DOCTRINES    OF    EQUITY.  [Ch.  5 


valuable  consideration;  and  so  is  marriage.80  As  a  general  rule, 
a  prison  taking  property  in  consideration  of  a  pre-existing  debt 
considered  a  purchaser  for  a  valuable  consideration,  because 
he  parts  with  nothing  of  value,  and  has  lost  nothing  by  the  transac- 
tion.81 But  in  some  states  it  is  held  that  an  absolute  discharge  and 
extinguishment  of  an  antecedent  debt  constitutes  a  valuable  con- 
sideration,  because  the  creditor  divests  himself  of  the  right  of  ac- 
limi,  or  of  securing  the  original  liability,  and  places  himself  in  a 
position  than  he  would  have  done  by  a  definite  forbearance 
of  the  debt.81 

If  the  consideration  is  in  fact  a  valuable  one,  the  court  will  not 
inquire  whether  it  is  adequate,88  unless  the  discrepancy  is  so  gross 
.is  to  amount  to  evidence  of  bad  faith.84  Again,  the  consideration 
must  be  actually  paid  before  there  is  any  notice  of  the  adverse 
claim  to  the  property.88  If  part  of  the  consideration  is  paid  before 
notice,  and  part  after,  the  purchaser  will  be  protected  as  to  the 
amount  paid  before  notice,  but  not  as  to  the  amount  paid  there- 
after.88 

Good  Faith. 

The  maxim  that  he  who  comes  into  equity  must  come  with  clean 
ha  mis  is  peculiarly  applicable  to  one  claiming  to  be  a  bona  fide 
purchaser.8'     Good  faith  consists  in  an  honest  intention  to  abstain 

so  Jackson  v.  Rowe,  2  Sim.  &  S.  472;  Penny  v.  Watts,  2  De  Gex  &  S.  501. 

si  Padgett  v.  Lawrence,  10  Paige,  180;  Eaton  v.  Davidson,  46  Ohio  St  355, 
364  21  N.  B.  442;  Gest  v.  Packwood,  34  Fed.  36S;  Clark  v.  Flint,  22  Pick. 
243;  Askton's  Appeal,  73  Pa.  St.  153;  People's  Sav.  Bank  v.  Bates,  120  U. 
56,  565,  7  Sup.  Ct  679. 

82  state  Bank  v.  Frame,  112  Mo.  502,  20  S.  W.  620;    Hanold  v.  Kays,  64 

439,  31   N.  W.  420;    Soule  v.  Skotwell,  52  Miss.  236;    Gassen  v.  Hen- 
drick,  74  Cal.  444,  16  Pac.  242. 

83  Basset  v.  Nosworthy,  2  White  &  T.  Lead.  Cas.  1;  Wood  v.  Chapin,  13 
N.  Y.  509;   Skerrett  v.  Presbyterian  Society,  41  Ohio  St.  606. 

84  Worthy  v.  CaddelL  76  N.  C.  82;  Dunn  v.  Barnum,  2  C.  C.  A.  265,  51  Fed. 
355;   Connecticut  Mut  Life  Ins.  Co.  v.  Smith,  117  Mo.  261,  22  S.  W.  623. 

ss  Green  v.  Green,  41  Kan.  472,  21  Pac.  5S6;  Young  v.  Kellar,  94  Mo.  581, 
7  S.  W.  293;  Tourville  v.  Naish,  3  P.  Wms.  307. 

i>t  \.  Martin,  3  Serg.  &  R.  423;  Mitchell  v.  Dawson,  23  W.  Va.  86;  Kit- 
-e  v.  Chapman,  36  Iowa,  348;    Baldwin  v.  Sager,  70  111.  503;   Birdsall  v. 
.  29  Neb.  679,  45  N.  W.  921. 
87  Cram  v.  Mitchell,  1  Sandf.  Ch.  251. 


Oh.  5]  BONA    FIDE    PURCHASERS.  9? 

from  taking  any  unconscientious  advantage  of  another,  even  through 
the  forms  or  technicalities  of  law,  together  with  an  absence  or  belief 
of  facts  which  would  render  the  transaction  unconscientious.88  Not 
only  must  there  be  an  absence  of  positive  fraud,  but  any  inequitable 
conduct  by  the  purchaser  towards  his  grantor,  or  the  latter's  cred- 
itors, defeats  the  protection  which  equity  would  otherwise  accord 
a  bona  fide  purchaser.89  We  have  already  seen  that  gross  inade- 
quacy of  consideration  is  a  badge  of  fraud,90  and  it  has  also  been 
held  that  a  mortgagee  cannot  be  considered  a  bona  fide  purchaser 
where  there  is  usury  in  the  debt  secured.91 

Notice. 

The  question  as  to  what  constitutes  notice  has  already  been  dis- 
cussed.92 It  is  settled  that  one  who  pays  the  purchase  money 
with  notice,  in  any  of  its  various  forms,  either  actual  or  con- 
structive, of  adverse  rights  in  the  property  purchased,  takes  sub- 
ject to  those  rights,  and  will  not  be  protected  as  a  bona  fide  pur- 
chaser.93 It  remains,  however,  to  state  a  few  additional  rules  re- 
specting notice  as  affecting  bona  fide  purchasers: 

1.  The  weight  of  authority  is  that  a  grantee  in  a  quitclaim  deed 
which  conveys  only  the  "right,  title,  and  interest  of  the  grantor" 
is  not  a  bona  fide  purchaser,  because  the  deed  itself  is  notice  that 
he  is  getting  only  a  doubtful  title.94    But  there  are  other  cases 

ss  Gress  v.  Evans,  1  Dak.  387,  46  N.  W.  1132. 

sa  2  Pom.  Eq.  Jur.  §  762. 

»o  Ante,  p.  96. 

si  Smith  v.  Lehman,  Durr  &  Co.,  85  Ala.  394,  5  South.  204.  Where  a  land 
grant  by  the  federal  government  is  made  on  condition  that  a  certain  road 
be  completed  by  the  grantees,  purchasers  from  the  grantees  are  not  charge- 
able with  bad  faith  because  they  fail  to  make  a  personal  examination  of  the 
road  to  ascertain  whether  it  is  completed,  when  the  governor  of  the  state,  to 
whose  determination  the  matter  had  been  committed  by  statute,  certifies  that 
the  road  is  completed.  U.  S.  v.  California  &  O.  Land  Co.,  148  U.  S.  31,  13 
Sup.  Ct.  458.  Other  recent  cases  involving  the  question  of  good  faith  are 
Billings  v.  Aspen  Mining  &  Smelting  Co.,  2  C.  C.  A.  252,  51  Fed.  338;  Tarking- 
ton  v.  Purvis,  128  Ind.  182,  25  N.  E.  S79;  Barrett  v.  Sear,  128  Ind.  261,  27  N. 
E.  607. 

92  Ante,  p.  80  et  seq. 

93  l  Story,  Eq.  Jur.  §  395;   Murray  v.  Ballou,  1  Johns.  Ch.  566. 

a*  Martin  v.  Morris,  62  Wis.  418,  22  N.  W.  525;  Thorn  v.  Newsom,  64  Tex. 
161;  Dodge  v.  Briggs,  27  Fea.  160;  Peters  v.  Cartier,  80  Mich.  124,  45  N.  W. 

EQ.JUR.— 7 


DOCTRINES    OK    EQUITY.  [Ch.   5 

holding  that  a  grantee  in  a  quitclaim  deed,  who  in  good  faith  parts 
wiili  a  valuable  consideration,  is  entitled  to  protection,  as  a  bona  fide 
purchaser,  equally  with  a  grantee  in  a  deed  containing  covenants 
\v;i  minting  the  title.98 

_'.  Though  a  purchaser  of  property  has  notice  of  adverse  rights, 
yet  a  bona  fide  purchaser  from  him  will  be  protected  in  equity;  for 
.  therwise  no  man  would  be  safe  in  any  purchase,  but  would  be  liable 
to  have  his  own  title  defeated  by  secret  equities  of  which  he  could 
have  no  possible  means  of  making  a  discovery.96 

Bo,  also,  if  a  purchaser  has  notice  of  adverse  rights  in  the  property, 
vrt  li«'  will  be  protected  if  he  purchases  from  a  bona  fide  purchaser 
without  notice;  for  otherwise  such  bona  fide  purchaser  could  not 
enjoy  the  benefit  of  his  own  unexceptionable  title.97 

PRIORITIES. 

Having  ascertained  what  constitutes  a  bona  fide  purchaser  for 
value  without  notice,  we  are  now  in  a  position  to  inquire  when  he  is 
•  in  it  led  to  invoke  the  protection  of  a  court  of  equity  as  against  one 
asserting  adverse  rights  to  the  property,  either  legal  or  equitable. 
The  broad  proposition  has  been  laid  down  that  equity  will  in  no  case 

7.;;  Richardson  v.  Levi,  67  Tex.  359,  3  S.  W.  444;  Johnson  v.  Williams,  37 
Kan.  179,  14  Pac.  537;  Dickerson  v.  Colgrove,  100  U.  S.  578,  584;  Baker  v. 
Humphrey ,  101  U.  S.  494,  499. 

■  Nidever  v.  Ayers,  S3  Cal.  39,  23  Pac.  192;  Fox  v.  Hall,  74  Mo.  315;  Chap- 
man v.  Sims,  53  Miss.  154.  In  recent  cases  questioning  prior  decisions,  the 
United  States  supreme  court  lays  uown  the  proposition  that  the  grantee  in  a 
quitclaim  deed  may  be  a  bona  fide  purchaser.  Moelle  v.  Sherwood,  148  U.  S. 
21,  13  Sup.  Ct.  426;  U.  S.  v.  California  &  O.  Land  Co.,  148  U.  S.  31,  13  Sup. 
Ct.  458. 

9«  1  Story,  Eq.  Jur.  §  409;  Harrison  v.  Forth,  Finch,  Prec.  51;  Paris  v. 
I. .wis,  S5  111.  597;  Odom  v.  Riddick,  104  N.  C.  515,  10  S.  E.  609;  Zoeller  v. 
Riley,  100  X.  Y.  108,  2  N.  E.  388;  Somes  v.  Brewer,  2  Pick.  1S3;  Latham  v. 
In  man,  88  Ga.  505,  15  S.  E.  8. 

■  Trull  v.  Bigelow,  16  Mass.  406;  Mott  v.  Clark,  9  Pa.  St  399;  Craig  v. 
Zimmerman,  87  Mo.  478;  Hayes  v.  Nourse,  114  N.  Y.  606,  22  N.  E.  40;  Scot- 
land Co.  v.  Hill,  132  U.  S.  107,  10  Sup.  Ct.  26.  The  second  bona  fide  pur- 
chaser cannot,  however,  convey  back  to  his  grantor  with  notice,  so  as  to  en- 
able  the  latter  to  take  free  from  the  adverse  equities.  Kennedy  v.  Daly,  1 
Schoak-s  &  L.  355,  379;  Church  v.  Rutland,  64  Pa.  St.  432;  Clark  v.  McNeal, 
114  N.  Y.  29.1,  21  N.  E.  405. 


Ch.  5]  PRIORITIES.  99 

give  assistance  against  a  bona  fide  purchaser  for  value  without  no- 
tice, but  this  proposition  is  subject  to  so  many  exceptions  and  limita- 
tions as  to  be  practically  valueless.98  The  following  statement  of 
the  general  principles  governing  courts  of  equity  in  determining  the 
priority  of  adverse  claimants  to  the  same  property  will,  it  is  believed, 
materially  aid  the  student  in  understanding  the  somewhat  intricate 
and  perplexing  cases  on  this  subject: 


SAME— UNEQUAL    EQUITIES. 

63.  Where  the  equities  of  rival  claimants  are  not  equal, 
he  -who  has  the  best  equity  takes  precedence. 

This  principle,  though  rarely  announced  in  express  terms,  is  one 
of  controlling  importance;  for  the  maxims,  "Where  there  are  equal 
equities,  the  law  prevails,"  and,  "Where  there  are  equal  equities,  the 
first  in  order  of  time  prevails,"  can  have  no  application  where  the 
equities  are  not  equal.  The  following  rules  have  been  formulated 
to  determine  whether  one  equity  is  superior  to  another: 

64.  An  equity  founded  on  a  valuable  consideration  is 
superior  to  one  founded  on  a  mere  voluntary  transfer  or 

gift." 

We  have  already  seen  that,  to  constitute  a  bona  fide  purchaser, 
there  must  be  the  payment  of  a  valuable  consideration;  in  other 
words,  one  who  acquires  an  equitable  interest  in  property  for  a 
valuable  consideration  has  a  superior  equity  to  one  who  thereafter 
acquires  the  legal  title  by  way  of  gift  without  knowledge  of  the  prior 
interest  This  proposition  is  illustrated  in  a  somewhat  recent  case. 
A  woman  had  been  induced  to  marry  a  man  on  the  faith  of  his 
promise  to  convey  certain  land  to  her.  Instead  of  so  doing,  he  con- 
veyed it,  by  way  of  gift,  to  a  son  by  a  former  wife.  It  was  held  that 
the  second  wife's  equity  to  the  land  was  superior  to  the  legal  title 
of  the  son,  though  he  knew  nothing  of  his  father's  fraud,  because  a 
mere  volunteer,  however  innocent,  cannot  retain  the  fruits  of  the 

»8  Haynes,  Eq.  (5th  Ed.)  pp.  388-390;    2  Pom.  Eq.  Jur.  §§  737-746. 
8»  Adams,  Eq.  p.  147;  2  Pom.  Eq.  Jur.  §  685. 


DOCTRINES    OF    EQUITY.  [Ch.   5 


fraud.1 rhis  pule  is  very  frequently  applied  to  cases  of  insolvency 

and  bankruptcy.  It  is  uniformly  held  that  an  assignee  in  insolvency 
or  bankruptcy  is  merely  a  volunteer,  and  takes  the  property  subject 
to  all  equities  existing  against  the  insolvent.101  For  instance,  when 
property  Is  held  by  a  bankrupt  as  trustee,  the  cestui  que  trust  has  a 
superior  equity  to  the  assignee,  though  no  declaration  of  trust  ap- 
pears "ii  record.10'  This  principle,  as  we  shall  hereafter  see,  is  of 
controlling  importance  in  determining  the  rights  of  a  grantee  in  a 
.•(.iivi'vmimv  assailed  by  the  grantors  creditors  as  in  fraud  of  their 
rights.103 

65.  An  equity  to  a  specific  thing  or  a  specific  lien  ia 
superior  to  an  equity  general  in  its  scope  or  nature.104 

A  frequent  application  of  this  rule  is  to  cases  of  conflicting  rights 
between  a  grantee  or  mortgagee  in  an  unrecorded  instrument,  and 
a  subsequent  judgment  creditor  of  the  grantor  or  mortgagor.  In  the 
absence  of  express  statute,  the  lien  of  a  mortgage  on  specific  land, 
though  not  recorded,  is  superior  to  the  general  lien  of  a  subsequent 
judgment  against  the  mortgagor.105  So  a  vendee  under  an  unre- 
corded  deed  is  entitled  to  priority  over  a  subsequent  judgment  against 
the  grantor.108  When,  however,  the  land  is  sold  on  execution  under 
such  a  judgment,  the  purchaser,  on  placing  the  sheriff's  deed  on 
record,  will  be  protected  against  a  prior  unrecorded  mortgage,  since 

100  peck  v.  Peek,  77  Cal.  106,  19  Pac.  227. 

ioi Dudley  v.  Easton,  104  U.  S.  99,  103;  Webber  v.  Clark,  136  Dl.  256,  26  N. 
K.  360,  and  32  N.  E.  748;  Kirk  v.  Roberts  (Cal.)  31  Pac.  620. 

102  Webber  v.  Clark,  130  111.  250,  20  N.  E.  300,  and  32  N.  E.  748. 

"3  See  post,  158. 

Ldams,  Eq.  p.  147;   2  Pom.  Eq.  Jur.  §§  720,  721. 

io3  Sapplngton  v.  Oesebli,  49  Mo.  244;  Carraway  v.  Carraway,  27  S.  C.  570,. 
5  S.  E.  1"'T;  Cburchill  v.  Morse,  23  Iowa,  229;  Jackson  v.  Dubois,  4  Johns, 
•JO'.;  Hunter  v.  Watson,  12  Cal.  203.  A  contrary  rule,  however,  prevails  in 
other  states,  cbiefly  by  virtue  of  statutory  provisions.  Vreeland  v.  ClafQiu, 
24  N.  J.  Eq.  313;  McFadden  v.  Worthington,  45  111.  302;  Young  v.  Devries. 
31  Gratt  304;  Humphreys  v.  Merrill,  52  Miss.  92;  Andrews  v.  Mathews,  59- 
<;:t.  400;  Anderson  v.  Nagle,  12  W.  Va.  98;  Cavanaugh  v.  Peterson,  47  Tex. 
198. 

io«  Schroeder  v.  Gurney,  73  N.  Y.  430;  Harral  v.  Gray,  10  Neb.  180,  4  N.  W.. 
104U. 


Ch.  5]  PRIOEITIES.  101 

the  sheriff's  deed  is  treated  as  if  given  by  the  judgment  debtor  him- 
self, and  conveys  precisely  what  he  could  have  conveyed  when  the 
judgment  was  docketed.107  Decisions  that  the  specific  lien  of  a  pur- 
chase money  mortgage  executed  contemporaneous^  with  the  deed 
is  superior  to  the  general  lien  of  an  existing  judgment  against  the 
mortgagor  may  also  be  sustained  under  the  above  rule,  though  the 
reason  assigned  in  some  of  the  earlier  cases  is  that  the  mortgagor 
has  but  an  instantaneous  seizin,  and  that  the  judgment  lien  can- 
not therefore  attach.108  Another  important  application  of  the  prin- 
ciple is  to  be  found  in  cases  involving  the  rights  of  a  grantee  in  a 
conveyance  assailed  as  in  fraud  of  the  grantor's  creditors.109 

66.  The  equity  of  the  party  misled  is  superior  to  his 
who  has  -willfully  misled  him.110 

Though  somewhat  analogous  to  the  doctrine  of  equitable  estoppel, 
this  rule  existed  prior  to  that  doctrine,  and  is  entirely  independent 
of  it.  The  meaning  of  the  rule  is  that  one  interested  in  an  estate, 
who  knowingly  misleads  another  into  dealing  with  the  estate  as  if 
he  were  not  interested,  will  be  postponed  to  the  party  misled,  and 
compelled  to  make  his  representation  specifically  good.  There  is  a 
distinction,  however,  to  be  observed  between  the  case  where  the  dis- 
pute arises  between  two  merely  equitable  assignees  and  where  the 
first  assignee  in  order  of  date  has  the  legal  title.  It  is  clear  that  if 
a  mere  equitable  owner,  by  his  carelessness,  enables  a  fraud  to  be 
perpetrated,  the  result  of  which  is  that  either  he  or  some  innocent 
third  party  must  suffer,  equity  will  aid  the  third  party,  and  not  the 
careless  one.  Thus,  where  one  having  merely  an  equitable  interest  in 
land  stands  by  and  sees  another  purchase  the  land  without  giving 
notice  of  his  equities,  the  purchaser  will  take  the  land  discharged 
of  such  equities.111  So,  also,  it  has  been  held  that  the  failure  of  an 
assignee  of  notes  secured  by  mortgage  to  procure  and  record  an 

io7  Hetzel  v.  Barber,  69  N.  Y.  1,  9;  McKnight  v.  Gordon,  13  Rich.  Eq.  222. 

los  Stewart  v.  Smith,  36  Minn.  82,  30  N.  W.  430;  Roane  v.  Baker,  120  111. 
308,  11  N.  E.  246;  Curtis  v.  Root,  20  111.  54;  Bradley  v.  Bryan,  43  N.  J.  Eq. 
396,  13  Atl.  806. 

109  see  post,  158. 

no  Adams,  Eq.  p.  148;  2  Pom.  Eq.  Jur.  §  686. 

"1  Wells  v.  Neff,  14  Or.  66,  14  Pac.  84,  88, 


IMS    OF    EQUITY.  L^h-  *> 


niu.-nt  of  the  mortgage  is  such  aegligence  as  will  postpone  his 
lien  i"  that  of  a  junior  mortgagee,  who  loaned  his  money  on  the 
faith  of  the  release  of  the  prior  mortgage  by  the  mortgagee,  though 
the  release  was  do!  authorized  by  the  assignee,  and  though  the  mort- 
e  embezzled  the  money  paid  to  procure  it.112 
Mere  carelessness,  however,  will  not  defeat  the  rights  of  the  holder 
of  the  prior  legal  estate  as  against  one  having  subsequent  equities. 
The  legal  owner  has  a  righl  to  say:  "I  am  the  legal  owner,  and  I 
have  yel  to  learn  thai  a  legal  estate  can  be  defeated  by  mere  care- 
118  Thus,  if  has  been  held  that  the  legal  owner,  whose  title 
is  on  record,  will  not  be  postponed  merely  because  he  remained  silent 
while  another  dealt  with  the  property  as  his  own.114  But  positive 
fraud  or  even  gross  carelessness  will  postpone  the  legal  owner.115 
For  example,  he  cannot  assert  his  title,  though  duly  recorded,  against 
one  who  expended  money  on  the  faith  of  his  denial  of  title,  either 
by  acts  or  declarations.116 

67.  One  taking  with  notice  of  an  equity  takes  subject  to 

that  equity.117 

The  meaning  of  this  rule  is  that  if  one  acquiring  property  has, 
when  he  pays  the  purchase  money,  notice  of  a  prior  equity  binding 
the  owner  in  respect  of  that  property,  he  shall  be  assumed  to  have 
contracted  for  that  only  which  the  owner  could  honestly  transfer, 
viz.  his  interest,  subject  to  the  equity  as  it  existed  at  the  date  of 
notice.118  The  following  are  some  of  the  more  important  applica- 
tions  of  the  rule:  The  purchaser  of  property  from  a  trustee,  with 
notice  of  the  trust,  is  himself  a  trustee  for  the  same  purposes; 119  the 

112  Livermore  v.  Maxwell  (Iowa)  55  N.  W.  37. 
"a  Onderh.  Eq.  p.  165. 

ii*  Clabaugb  v.  Byerly,  7  Gill,  354;   Groundie  v.  Northampton  Water  Co.,  7 
239;    Knouff  v.  Thompson,  16  Pa.  St.  361,  363;   Hill  v.  Epley,  31  Pa. 

1 :   Neal  v.  Gregory,  19  Fla.  356. 
us  Northern  Counties  of  Eng.  P.  Ins.  Co.  v.  Whipp,  26  Ch.  Div.  482. 
no  Evans  v.  Forstall,  58  Miss.  30. 
i"  Adams,  Eq.  p.  148;  2  Pom.  Eq.  Jur.  §  6S8. 

«8  Adams,  Eq.  p.  151;  Gamble  v.  Hamilton  (Fla.)  12  South.  229;  McCone 
v.  Courser,  64  N.  H.  306,  15  Atl.  129;  Otis  v.  Payne,  86  Tenn.  663,  8  S.  W.  848; 

■  v.  Sanborn,  60  Mich.  346.  27  N.  W.  527. 
no  Burgess  v.  Wheate,  1  Eden,  177,  195;    Pindall  v.  Trevor,  30  Ark.  249; 


Ch.  5]  PRIORITIES.  103 

purchaser  of  property  which  the  vendor  has  already  contracted  to 
sell,  with  notice  of  such  prior  contract,  is  bound  to  convey  to  the 
claimant  under  it;120  and  the  purchaser  of  land  which  the  vendor 
has  covenanted  to  use  in  a  specified  manner,  having  notice  of  that 
covenant,  is  bound  by  its  terms,  though  it  does  not  at  law  run  with 
the  land.121  The  questions  as  to  what  constitutes  notice,  when  it 
must  be  given,  etc.,  have  already  been  discussed.122 

Our  next  inquiry  will  be  as  to  the  priority  of  rights  of  assignees 
and  purchasers  having  equal  equities. 

SAME— EQUAL   EQUITIES. 

68.  A  court  of  equity  will  not  assist  the  holder  of  an 
equitable  estate  as  against  one  who  has  an  equal  equita- 
ble claim  on  or  interest  in  the  subject-matter,  and  -who,  in 
addition,  has  acquired  the  legal  title. 

This  proposition  rests  on  the  maxim,  "When  the  equities  are 
equal,  the  law  shall  prevail."  No  relief  will  be  given  against  a  de- 
fendant who,  in  these  circumstances,  has  acquired  the  legal  title 
without  notice  of  plaintiff's  equity.  This  proposition  may  be  thus 
illustrated:  The  owner  of  land  contracts  to  sell  it  to  A.,  who  pays 
part  or  all  of  the  purchase  money  before  the  estate  is  legally  con- 
veyed to  him.  The  owner  then  sells  the  estate  to  B.,  who  has  no 
notice  of  the  transaction  with  A.    B.  pays  his  purchase  money,  and 

Storrs  v.  Wallace,  61  Mich.  437,  28  N.  W.  662;  Rabb  v.  Flenniken,  29  S.  C. 
278,  7  S.  E.  597. 

120  Merry  v.  Abney,  1  Cas.  Ch.  38;  Potter  v.  Sanders,  6  Hare,  1;  Greaves 
v.  Tofield,  14  Ch.  Div.  563,  57 1;  Veith  v.  McMurtry,  26  Neb.  341,  42  N.  W.  6. 

121  Tulk  v.  Moxhay,  11  Beav.  571;  2  Phil.  Ch.  774,  777;  Parker  v.  Nightin- 
gale, 6  Allen,  341,  344;  Whitney  v.  Union  Railway  Co.,  11  Gray,  359,  368; 
Barrow  v.  Richard,  8  Paige,  351;  Trustees  of  Village  of  Watertown  v.  Co  wen, 
4  Paige,  510;  Trustees  of  Columbia  College  v.  Lynch,  70  N.  Y.  440,  449-452; 
Willoughby  v.  Lawrence,  116  111.  11,  4  N.  E.  356;  Gilmer  v.  Mobile  &  M. 
Ry.  Co.,  79  Ala.  569;  De  Gray  v.  Monmouth  Beach  Clubhouse  Co.  (N.  J.  Ch.) 
24  Atl.  388;  Hodge  v.  Sloan,  107  N.  Y.  244,  17  N.  E.  335.  But  a  covenant 
which  affects  use  of  land  merely  in  a  collateral  way  will  not  be  enforced  in  eq- 
uity against  an  assignee  with  notice.  Kettle  River  R.  Co.  v.  Eastern  Ry. 
of  Minn.,  41  Minn.  461,  43  N.  W.  469;  Norcross  v.  James,  140  Mass.  188,  2  N. 
E.  946. 

122  Ante,  80  et  seq. 


DOCTRINES    OK    EQUITY.  [^».   5 


a  deed  to  him  is  executed  and  recorded.  If,  then,  A.  comes  into 
equity  to  enforce  against  the  estate  the  lien  to  which,  as  a  purchaser, 
equity  would  onder  other  circumstances  have  held  him  entitled,  the 
relief  will  be  refused  to  him.  It  will  be  held  that  B.  has  as  good 
a  right  in  conscience  to  the  full  enjoyment  of  his  estate  as  A.  has  to 
security  for  Ins  prematurely  paid  purchase  money.  Equity  will 
therefore  refuse  to  interfere  with  the  advantage  he  derives  from  his 
Legal  position.1"  Another  illustration  is  to  be  found  where  one  pur- 
chases  1 1  nsl  property  for  value  without  notice  of  the  trust.  The  pur- 
chaser who  has  parted  with  value  on  the  faith  of  an  apparently  ab- 
Bolute  title  in  the  trustee  has  an  equal  equity  with  the  cestuis  que 
trustent;  and,  since  the  deed  from  the  trustee  vests  him  with  the 
Legal  title,  equity  will  give  no  assistance  to  the  beneficiaries  as 
against  him.124 

The  rule  above  stated  in  the  black-letter  text  not  only  applies  to 
where  the  purchaser  has  secured  the  legal  title  contemporane- 
ously with  his  equitable  estate,  but  also  to  cases  where  he  afterwards 
acquired  the  legal  title;  and  this,  notwithstanding  that,  in  the  in- 
terval  between  his  purchase  and  his  acquiring  the  legal  title,  he  may 
have  had  notice  of  the  prior  transaction  with  plaintiff.125 

A  rather  frequent  application  of  the  rule  is  to  cases  where  plain- 
liff  has  a  mere  equity  as  distinguished  from  an  equitable  estate; 
for  example,  a  right  to  rescission  of  a  deed  or  mortgage  for  the  fraud 
of  the  grantee  or  mortgagee,  or  a  right  to  reformation  for  a  mistake- 
in  the  instrument.  It  is  uniformly  held  that  this  relief  will  be  denied 
as  against  one  who  has  purchased  the  legal  title  from  the  grantee  or 
mortgagee  for  value,  and  without  notice  of  plaintiff's  equities.126     So, 

«a  Smith,  Pr.  Eq.  p.  319. 

mwarnock  v.  Harlow,  96  Cal.  298,  31  Pac.  166.  Purchaser  from  trustee 
without  notice  of  constructive  or  resulting  trust  will  be  protected  against 
beneficiaries.  Gray  v.  Coan,  40  Iowa,  327;  Wilson  v.  Western  N.  C.  Land 
Co.,  77  N.  C.  445.  So,  also,  where  a  defective  mortgage  is  executed  by  a  trus- 
tee, and  is  not  placed  on  record,  a  subsequent  conveyance  of  the  legal  title 
to  the  cestui  que  trust  for  value  and  without  notice  will  be  protected.  Fox 
v.  Palmer,  25  N.  J.  Eq.  416. 

3mith,  Pr.  Eq.  p.  320.  The  principal  illustration  of  this  branch  of  the 
rule  is  the  English  doctrine  of  tacking,  heretofore  explained.  See  ante,  35. 
Applications  of  this  branch  of  the  doctrine  are  very  rare  wtth  us. 

i«  Reformation  of  deed  or  mortgage  for  mistake  denied  as  against  subse- 


Ch.  5]  PRIORITIES.  105 

also,  a  conveyance  void  as  against  the  grantor's  creditors  for  fraud 
will  not  be  set  aside  at  their  suit  as  against  a  bona  fide  purchaser  for 
value  from  the  grantee.127 

69.  Where  the  equities  are  otherwise  in  every  respect 
equal,  and  there  is  no  legal  estate  or  interest  in  either 
claimant,  he  whose  equity  first  accrued  will  take  prece- 
dence. 

This  proposition  is  merely  an  amplification  of  the  maxim,  "Where 
the  equities  are  equal,  the  first  in  order  of  time  shall  prevail."  In 
England  its  chief  application  has  been  to  cases  of  equitable  mort- 
gage created  by  the  deposit  of  title  deeds.  Though  this  form  of  mort- 
gage is  unknown  to  us,  our  own  courts  apply  the  doctrine  whenever 
the  facts  warrant  them  in  so  doing.  For  example,  as  between  two 
assignees  of  the  same  mortgage,  the  first  in  order  of  time  is  en- 
titled to  the  money  due  thereon,  though  the  second  assignee  took 
without  notice  of  the  first,  and  each  gave  notice  of  his  assignment 
to  the  mortgagor.128  So,  also,  as  between  a  mortgagee  whose  mort- 
gage has  been  discharged  of  record,  solely  through  the  unauthorized 
act  of  another,  and  a  purchaser  who  buys  the  land  in  the  belief, 
induced  by  the  cancellation,  that  the  mortgage  is  satisfied  and  dis 
charged,  the  equities  are  balanced,  and  the  rights,  in  the  order  of 

quent  bona  fide  purchasers.  Lough  v.  Michael,  37  W.  Va.  679,  17  S.  E.  181, 
470;  Mayor  of  City  of  Macon  v.  Dasher,  90  Ga.  195,  16  S.  E.  75;  Toll  v.  Daven- 
port, 74  Mich.  386,  42  N.  W.  63;  Knobloch  v.  Mueller,  123  111.  554,  17  N.  E. 
696;  Garrison  v.  Crowell,  67  Tex.  626,  4  S.  W.  69;  Whitman  v.  Weston,  30 
Me.  285.  Rescission  denied  as  against  bona  fide  purchaser.  Town  of  Cherry 
Creek  v.  Becker,  123  N.  Y.  161,  25  N.  E.  369  (municipal  bonds);  Dettra  v. 
Kestner,  147  Pa.  St.  566,  23  Atl.  889;  Zoeller  v.  Riley,  100  N.  Y.  108,  2  N.  E. 
388;  Rowley  v.  Bigelow,  12  Pick.  307;  Halverson  v.  Brown,  75  Iowa,  702, 
38  N.  W.  123;  Hewlett  v.  Pilcher,  85  Cal.  542,  24  Pac.  781;  Dickerson  v. 
Evans,  84  111.  451. 

127  Holmes  v.  Gardner,  50  Ohio  St.  167,  33  N.  E.  644;  Sawyer  v.  Almand, 
89  Ga.  314,  15  S.  E.  315;  Blackshire  v.  Pettit,  35  W.  Va.  547,  14  S.  E.  133; 
Fletcher  v.  Peck,  6  Cranch,  87,  133,  134;  Rowley  v.  Bigelow,  12  Pick.  307; 
Ledyard  v.  Butler,  9  Paige,  132;  Anderson  v.  Roberts,  18  Johns.  515;  Hood  v. 
Fahnestock,  8  Watts,  489;  Price  v.  Junkin,  4  Watts,  85;  Sydnor  v.  Roberts, 
13  Tex.  598. 

128  Muir  v.  Schenck,  3  HiU,  228. 


lUii 


RLNES   OF    EQUITY.  [Ch.  5 


time,  must  prevail.     The  lieu  of  the  mortgage  must  remain,  despite 
the  apparent  discharge.129 

70.  Where  the  equities  are  equal,  and  plaintiff,  who  has 
also  the  legal  title,  invokes  the  assistance  of  a  court  of 
equity,  the  defense  of  bona  fide  purchaser  for  value  with- 
out notice  will  not  prevail.130 

( >n  this  ground,  it  has  been  held  that  it  is  no  defense  to  a  bill  by 
a  widow  for  dower,  which  is  the  legal  estate,  that  defendant  pur- 
chased  from  her  husband  for  value,  without  any  notice  that  he  was 
married.131  It  wTas  formerly  held,  however,  that  when  plaintiff,  hav- 
ing the  legal  estate,  resorted  to  the  auxiliary  jurisdiction  of  the 
chancery  court  for  discovery  to  perfect  his  interest,  no  assistance 
would  be  given  him  as  against  a  purchaser  for  value  without  no- 
tice; 132  but  since  the  enactment  of  the  judicature  act  in  England,  fus- 
ing law  and  equity,  it  has  been  held  that  the  plea  of  purchase  for 
value  without  notice  is  no  longer  any  defense  to  making  discovery 
of  defendant's  title  deeds.183  Owing  to  our  recording  acts,  it  is  diffi- 
cult to  conceive  how  the  question  could  arise  with  us. 

Beyder  v.  Excelsior  Building  Loan  Ass'n,  42  N.  J.  Eq.  403,  408,  8  AtL 
310. 
130  pom.  Eq.  Jur.  7G5;    Smith,  Pr.  Eq.  p.  322. 
i3i  Williams  v.  Lambe,  3  Brown,  Ch.  Cas.  264. 

132  Basset  v.  Nosworthy,  2  White  &  T.  Lead  Cas.  Eq.  1. 

133  ind  v.  Emmerson,  12  App.  Cas.  300. 


Ch.   6]  PENALTIES    AND    FORFEITURES.  107 

CHAPTER   VI. 

DOCTRINES  OF  EQUITY  (Continued)— PENALTIES  AND  FORFEITURES. 

71.  Penalties  and  Forfeitures. 

72.  Penalty  or  Liquidated  Damages. 

73.  Statutory  Penalties. 

74.  Enforcing  Forfeiture. 

PENALTIES   AND   FORFEITURES. 

71.  Whenever  a  penalty  or  forfeiture  is  inserted  in  a 
contract  merely  to  secure  the  performance  of  some  act  or 
the  enjoyment  of  some  right  or  benefit,  the  performance 
of  such  act  or  the  enjoyment  of  such  right  or  benefit  is  the 
substantial  and  principal  intent  of  the  instrument,  and  the 
penalty  or  forfeiture  is  only  accessory,  and  therefore  in- 
tended only  to  secure  the  damage  actually  incurred;  and 
hence  equity  ■will  relieve  against  the  penalty  or  forfeiture, 
and  decree  compensation,  -whenever  such  compensation 
can  effectually  be  made. 

This  doctrine  rests,  as  we  have  seen,  on  the  maxim  that  equity 
looks  at  the  substance  of  a  transaction,  rather  than  its  form.1  In  its 
earlier  history,  equity  would  relieve  against  a  penalty  only  when  in- 
tended to  secure  the  payment  of  a  sum  of  money; 2  but  Lord  Thurlow 
extended  the  doctrine  to  penalties  intended  to  secure  the  perform- 
ance of  some  collateral  act  or  the  enjoyment  of  some  right  or  bene- 
fit ; 3  and  the  common-law  courts  ultimately  adopted  the  same  view.* 
The  chief  question  in  modern  cases  has  always  been  whether  a  sum 
fixed  in  an  agreement  as  payable  in  default  of  compliance  with  its 
primary  terms  is  to  be  taken  as  a  penalty  against  which  the  courts 
will  grant  relief,  or  as  liquidated  damages  which  the  courts  will 
enforce.    This  difficulty  has  arisen  from  a  conflict  between  the  equi- 

i  Ante,  23. 

2  Peachy  v.  Duke  of  Somerset,  2  White  &  T.  Lead.  Cas.  Eq.  2014. 

s  Sloman  v.  Walter,  2  White  &  T.  Lead.  Cas.  Eq.  2022. 

4  Kemble  v.  Farren,  6  Bing.  141;  Astley  v.  Weldon,  2  Bos.  &  P.  346. 


DOCTRINES    OF    EQUITY.  [Ch.    G 

table  principle  that  relief  will  be  given  against  hard,  unconscientious, 
and  oppressive  agreements,  and  the  acknowledged  rights  of  persons 
imt  under  disability  and  dealing  with  each  other  at  arms'  length  to 
make  their  own  contracts,  which  the  courts  are  bound  to  enforce 
as  writ  tin.'1  While  the  courts  generally  profess  that  the  primary 
object  is  to  ascertain  the  intent  of  the  parties,6  they  have  also  held 
thai  the  use  of  the  words  "penalty"  or  of  "liquidated  damages"  is 
not  conclusive  of  that  intent;7  and  the  principle  which  seems  in 
fact  to  have  largely  controlled  their  decision  on  this  question  is 
that  the  parties  will  not,  by  express  agreements,  be  permitted  to  set 
aside  the  rule  of  law  which  limits  recovery  for  injuries  sustained  to 
just  compensation.8 

PENALTY   OR   LIQUIDATED   DAMAGES. 

72.  To  determine  -whether  a  sum  of  money  stipulated  to 
be  paid  on  breach  of  condition  in  a  contract  is  to  be  treated 
as  "liquidated  damages"  which  plaintiff  is  entitled  to  re- 
cover irrespective  of  the  loss  sustained,  or  as  a  "  penalty," 
limiting  his  recovery  to  the  amount  of  his  actual  loss,  not, 
however,  exceeding  the  penalty,  the  following  rules  have 
been  established: 

(a)  Where  a  sum  of  money  is  stated  to  be  payable, 
either  by  way  of  liquidated  damages  or  by  way 
of  penalty,  for  breach  of  stipulations,  all  or  some 
of  which  are,  or  one  of  which  is,  for  the  pay- 
ment of  a  sum  of  money  of  less  amount,  the  sum 
stipulated  to  be  paid  is  treated  as  a  penalty,  and 
only  the  actual  damages  can  be  recovered.9 

•  Wallls  v.  Smith,  21  Ch.  Div.  243;  Little  v.  Banks,  85  N.  Y.  258,  266; 
Dwinel  v.  Brown,  54  Me.  468. 

o  Little  v.  Banks,  85  N.  Y.  258,  266;   Bagley  v.  Peddie,  16  N.  Y.  469. 

7  Hardee  v.  Howard,  33  Ga.  533;  Duffy  v.  Shockey,  11  Ind.  70;  Keeble  v. 
Keeble,  85  Ala.  552,  5  South.  149;  Brennan  v.  Clark,  29  Neb.  3S5,  45  N.  W. 
472. 

s  Myer  v.  Hart,  40  Mich.  517,  523;  Jaquith  v.  Hudson,  5  Mich.  123,  136,  137. 

e  Wallis  v.  Smith,  21  Ch.  Div.  243;  Barton  v.  Capewell  Cont.  Pat.  Co.  (Q. 
B.  Div.  1S93)  08  Law  T.  (N.  S.)  857;    Clement  v.  Cash,  21  N.  Y.  253,  260. 


Ch.   6]  PENALTY    OR    LIQUIDATED    DAMAGES.  109 

It  is  a  principle  of  universal  application  that,  where  a  payment  of 
a  smaller  sum  is  secured  by  a  larger,  the  larger  sum  will  be  regarded 
as  a  penalty,  the  enforcement  of  which  will  be  relieved  against.1* 
The  above  rule  is  but  an  extension  of  the  principle,  since  the  court 
will  not  sever  the  stipulations.11 

(b)  Where  a  lump   sum   is   made   payable  by  way  of 

compensation  on  the  occurrence  of  one  or  all  of 
several  events,  some  of  'which  may  occasion 
serious  and  others  but  trifling  damage,  the  pre- 
sumption is  that  the  parties  intended  the  sum  to 
be  penal,  and  subject  to  modification.12 

As  a  corollary  of  this  rule,  it  may  be  stated  that,  where  a  con- 
tract makes  no  distinction  between  the  amount  to  be  forfeited  on  a 
total  failure  to  perform  and  only  a  partial  failure,  the  amount  will 
be  regarded  as  a  penalty,  and  not  as  liquidated  damages.13 

(c)  Where  there  is  only  one  event  on  which  the  money 

is  to  become  payable,  and  there  is  no  adequate 
means  of  ascertaining  the  precise  damages  which 
may  result  from  breach  of  the  contract,  it  is  per- 

lOAstley  v  Weldon,  2  Bos.  &  P.  350,  354;  Turnan  v.  Hemman,  16  111.  400. 
As  an  application  of  this  principle,  it  has  been  held  that  if  a  certain  rate  of 
interest  is  reserved  by  contract,  with  an  agreement  that,  if  it  be  not  paid 
punctually,  the  rate  shall  be  increased,  the  larger  interest  is  in  the  nature  of 
a  penalty,  and  may  be  relieved  against  in  equity.  Mason  v.  Callender,  2 
Minn.  350  (Gil.  302).  But,  if  the  larger  rate  be  originally  reserved  with  an 
agreement  for  reduction  on  punctual  payment,  the  condition  for  such  punctual 
payment  is  part  of  the  contract,  and  relief  cannot  be  given  if  it  is  not  fulfilled. 
Nicholls  v.  Maynard,  3  Atk.  519;  Carler  v.  Corley,  23  Ala.  612;  Adams,  Eq. 
108,  109. 

ii  Whitfield  v.  Levy,  35  N.  J.  Law,  149;  Shiell  v.  McNitt,  9  Paige,  101,  106; 
In  re  Newman,  4  Ch.  Div.  724. 

12  Lord  Elphinstone  v.  Monkland  Iron  &  Coal  Co.,  11  App.  Cas.  332;  Kemble 
v.  Fan-en,  6  Bing.  141;  Condon  v.  Kemper,  47  Kan.  126,  27  Pac.  829;  Wil- 
helm  v.  Eaves,  21  Or.  li>4,  27  Pac.  1053;  Basye  v.  Ambrose,  28  Mo.  39. 

is  Jemmison  v.  Gray,  29  Iowa,  537;  Lee  v.  Overstreet,  44  Ga.  507;  Ha- 
maker  v.  Schroers,  49  Mo.  406;  Curry  v.  Larer,  7  Pa.  St.  470;  Lyman  v. 
Babcock.  40  Wis.  503. 


HO  DOCTRINES   OF    EQUITY.  [Ch.   6 

fectly  competent  for  the  parties  to  fix  a  given 
amount  as  liquidated  damages  in  order  to  avoid 
the  difficulty." 

The  applications  of  this  rule  are  numerous.  Thus,  a  stipulation 
to  pay  a  specified  sum  on  breach  of  covenant  not  to  engage  in  a  cer- 
tain business  will  in  general  be  treated  as  providing  for  liquidated 
damages;18  so,  also,  with  a  stipulation  to  forfeit  a  certain  sum  per 
day  for  failure  to  complete  a  structure  at  a  specified  time;19  and 
with  a  covenan!  against  breach  of  contract  for  services;17  and  with 
ivenant  not  to  reveal  trade  secrets.18 

(d)  Where  a  contract  contains  several  stipulations  of 
varying  importance,  none  of  which  are  of  a  tri- 
fling nature,  and  the  damages  for  breach  of  each 
stipulation  are  unascertainable  or  not  readily 
ascertainable,  the  sum  stipulated  to  be  paid  'will 
be  treated  as  liquidated  damages.19 

The  foregoing  rules  do  not,  of  course,  exhaust  the  various  forms 
which  the  parties  to  a  contract  may  adopt.     Thus,  it  has  been  held 

h  Sainter  v.  Ferguson,  7  C.  B.  730;  Sparrow  v.  Paris,  8  Jur.  (N.  S.)  391; 
Rolfe  v.  Peterson,  2  Brown,  Pari.  Cas.  (Tomlins'  Ed.)  436. 

«  Kelso  v.  Reid,  145  Pa.  St.  606,  23  Atl.  323;  Cushing  v.  Drew,  97  Mass. 
445;   Green  v.  Price,  13  Mees.  &  W.  695;   Dakin  v.  Williams,  17  Wend.  452. 

is  Monmouth  Park  Ass'n  v.  Wallis  Iron  Works,  55  N.  J.  Law,  132,  26  Atl. 
140;  Malone  v.  Philadelphia,  147  Pa.  St.  416,  23  Atl.  628;  O'Brien  v.  Annis- 
ton  Pipe  Works,  93  Atl.  582,  9  South.  415;  De  Graff,  Vrieling  &  Co.  v.  Wick- 
ham  (Iowa)  52  N.  W.  503;  Lincoln  v.  Little  Rock  Granite  Co.,  (Ark.)  19  S. 
W.  1056. 

it  Tennessee  Manuf'g  Co.  v.  .Tames,  91  Tenn.  154,  18  S.  W.  262;  Keeble  v. 
Kiel ile,  85  Ala.  552,  5  South.  149.  See,  however,  Richardson  v.  Woehler,  26 
Mich.  90. 

is  Bagley  v.  Peddie,  16  N.  Y.  469;  Tode  v.  Gross,  127  N.  Y.  480,  28  N.  E. 
469.  Agreement  by  a  tenant  to  forfeit  $50  per  day  liquidated  damages  for 
holding  over  after  his  term  will  not  be  treated  as  a  penalty,  when  the  rental 
value  of  tho  premises  is  $7,000  per  annum.  Poppers  v.  Meager  (111.  Sup.)  35 
N.  B.  805. 

•  Wallis  v.  Smith,  21  Ch.  Div.  260;   Cotheal  v.  Talmage,  'J  X.  Y.  551;   Clem- 
ent v.  Cash,  _'l  N.  Y.  253,  259. 


Ch.   6]  STATUTORY    PENALTIES.  Ill 

that  where  separate  payments  are  stipulated  for  breach  of  each  of 
the  several  conditions  in  a  contract,  and  are  made  proportionate  to 
the  extent  to  which  the  contractors  may  fail  to  fulfill  their  obliga- 
tions, and  they  are  to  bear  interest  from  the  date  of  their  failure, 
payments  so  adjusted  with  reference  to  the  actual  damages  are 
liquidated  damages.20  It  has  also  been  held  that,  where  the  ex- 
pressions are  doubtful,  the  court  will  lean  in  favor  of  the  construc- 
tion which  treats  the  sum  as  a  penalty.21 

STATUTORY    PENALTIES. 

73.  The  jurisdiction  to  relieve  against  penalties  and  for- 
feitures does  not  extend  to  those  imposed  by  statute.22 

The  reason  is  that  statutory  enactments  are  as  binding  on  courts 
of  equity  as  on  those  of  law.  The  distinction  between  penalties 
and  forfeitures  imposed  by  contract  and  those  imposed  by  law  has 
always  been  observed.  "You  can  never  say  that  the  law  determined 
hardly,  but  you  may  say  that  the  party  has  made  a  hard  bargain," 
said  Lord  Macclesfield  in  the  leading  case  on  this  subject.23  It  has 
even  been  held  that  a  statutory  penalty  will  be  enforced  by  a  court 
of  equity,  if  the  case  is  properly  before  it.24 

20  Lord  Elphinstone  v.  Monkland  Iron  &  Coal  Co.,  11  App.  Cas.  332.  In  this 
case  it  was  said  (page  346):  "The  parties  to  any  contract  may  fix  the  dam- 
ages to  result  from  a  breach  at  a  sum  estimated,  as  liquidated  damages,  or 
they  may  enforce  the  performance  of  the  stipulation  of  the  agreement  by  a 
a  penalty.  In  the  first  instance,  plaintiff  is  entitled  to  recover  the  estimated 
sum  as  stipulated  damages,  irrespective  of  the  loss  sustained.  In  the  other 
the  penalty  is  to  recover  all  the  damages  actually  sustained;  but  it  does  not 
estimate  them,  and  the  amount  of  loss,  not,  however,  exceeding  the  penalty, 
is  to  be  ascertained  in  the  ordinary  way." 

aiDavies  v.  Penton,  6  Barn.  &  C.  216;  Keeble  v.  Keeble,  85  Ala.  552,  5 
South.  149. 

22  Clark  v.  Barnard,  108  U.  S.  436,  457,  2  Sup.  Ct.  878,  and  cases  cited;  State 
v.  McBride,  76  Ala.  51;  Keating  v.  Sparrow,  1  Ball  &  B.  373. 

23  Peachy  v.  Duke  of  Somerset,  2  White  &  T.  Lead.  Cas.  Eq.  2014. 

24  State  v.  Hall,  70  Miss.  678,  13  South.  39.  Contra,  Broadnax  v.  Baker,  94 
N.  C.  675. 


H2  DOCTRINKS    OF    EQUITY.  [Ch.    6 


ENFORCING  FORFEITURE. 

74.  Equity  will  not  lend  its  active  aid  to  enforce  a  for- 
feiture.25 

This  rule  rests  on  the  maxims  that  he  who  comes  into  equity  must 
do  equity,  and  must  come  with  clean  hands.  Equity  will  therefore 
withhold  its  aid  from  one  insisting  on  the  harsh  remedy  of  forfeiture 
for  condition  broken,  since  equitably  he  is  entitled  only  to  just 
compensation  for  his  injury,  and  he  will  be  remitted  to  his  legal 
remedies.2' 

as  Douglas  v.  Union  Mut.  Life  Ins.  Co.,  127  111.  101,  20  N.  E.  51;  Craig  v. 
Hukill,  37  W.  Ya.  520,  16  S.  E.  363;  Birmingham  v.  Lesan,  77  Me.  494,  1 
Ail.  151;  Mills  v.  Evansville  Seminary,  52  Wis.  669,  9  N.  W.  925;  McCormick 
v.  Hossi,  70  Cal.  474,  15  Pac.  35;  Livingston  v.  Tompkins,  4  Johns.  Ch.  415, 
431;  Meigs'  Appeal,  62  Pa.  St.  28,  35. 

26  Oil  Creek  R.  Co.  v.  Atlantic  &  G.  W.  R.  R.  57  Pa.  St  65;  1  fom.  Eq.  Jur. 
§  459. 


Ch.  7]  GROUNDS  FOR  EQUITABLE  RELIEF.  113 

CHAPTER  VII. 

GROUNDS  FOR  EQUITABLE  RELIEF. 

75.  Accident. 

76.  When  Relief  will  be  Granted. 

77.  Mistake. 

78.  Classification. 

79.  Mistake  of  Law. 

80.  Mistake  of  Fact. 

81.  Fundamental  Mistake. 

82.  Unilateral  Mistake  as  to  Subject-Matter. 

83.  Mistake  of  Expression. 

84.  Fraud. 

85.  Classification. 
88.          Actual  Fraud. 

87.  Wrongful  Acts  or  Misrepresentations. 

88.  Wrongful  Omissions. 

89.  Rights  and  Duties  of  Defrauded  Party. 

90.  Inequitable  or  Unconscientious  Transactions— Presumption  of  Fraud 

from  Nature  of  Transaction. 

91.  Fraud  Presumed  from  Position  or  Condition  of  Parties. 

92.  Contracts  with  Persons  under  Mental  Disability  or  Duress. 

93.  Contracts  between  Persons  in  Fiduciary  Relations. 

94.  Gifts  between  Persons  in  Fiduciary  Relations. 

95.  Frauds  on  Third  Persons. 

96.  Composition  with  Creditors. 

97.  Fraudulent  Conveyances. 

98.  Essential  Elements  of  Fraudulent  Conveyance* 

99.  The  Creditor. 

100.  Intent  to  Defraud. 

101.  Transfer  of  Property. 

102.  Frauds  on  Marital  Rights. 

103.  Frauds  on  Powers. 

ACCIDENT. 

75.  Accident,  in  the  sense  in  which  it  is  used  in  courts 
of  equity,  may  be  denned  as  an  unforeseen  and  injurious 
event,  occurring'  external  to  the  parties  affected  by  it,  and 
not  attributable  to  their  mistake,  neglect,  or  misconduct.1 

i  Smith,  Man.  Eq.  Jur.  p.  36^    "Accident  is  an  unforeseen  and  unexpected 
event,  occurring  external  to  the  party  affected  by  it,  and  of  which  his  own 
eq.jur.— 8 


114  GROUNDS    FOR    EQUITABLE    BELIEF.  [Ch.  7 

dent  relates  to  facta  wholly  externa]  to  the  parties,  and  re- 
,me  evenl  which  occurs  after  the  transact  ion  in  question 
bas  taken  place,  introducing  Bome  modification  in  the  remedy  which 
won]. I  otherwise  be  available,  or  giving  rise  to  some  particular  claim 
for  relief  The  jurisdiction  of  equity  to  grant  relief  in  certain  cases 
of  accident  is  of  rery  ancient  date,  having  been  exercised  by  the 
aiastical  chancellors  of  England  and  by  their  successors  after- 
wards.1 In  the  earlier  history  of  equity,  when  its  jurisprudence  was 
Dot  very  clearly  defined,  relief  was  given  in  many  cases  when  it 
would  now  be  refused.8 

SAME— WHEN  RELIEF  WILL  BE  GRANTED. 

76.  In  modern  times   the  right  to  relief,  on  the  ground 
of  accident,  is  determined  by  two  considerations: 

(a)  The    party  seeking  relief   must   show  a    conscien- 

tious title  thereto. 

(b)  Courts  of  law  must  have  been  unable  to  originally 

grant  suitable  relief. 

bums  Title  to  Relief. 
<  hie  who  has  been  guilty  of  gross  negligence  or  other  miscon- 
<  I  in  i  in  the  transaction  cannot  successfully  appeal  to  equity  for  re- 
lief  on  the  ground  of  accident.4     So,  also,  if  both  parties  stand  on  an 

agency  is  not  the  proximate  cause,  whereby,  contrary  to  his  own  intention 
and  wish,  he  loses  some  legal  right  or  becomes  subjected  to  some  legal  liabil- 
ity, and  another  person  acquires  a  corresponding  legal  right,  which  it  would 
be  a  violation  of  trood  conscience  for  the  latter  person,  in  the  circumstances, 
to  retain."    2  Pom.  Eq.  Jur.  §  823. 

ly  equity  would  grant  relief  against  penalties  and  forfeitures  only 
wliiu  accident  in  allowing  thr  day  of  payment  to  pass  by,  or  some  other  cir- 
cumsl  hardship,  induced  the  equity  judge  to  mitigate  the  literal  rigor 

of  the  contract.    The  same  was  true  in  cases  of  mortgage,  redemption  after 
default   being  originally  permitted  only  when  the  default  was  accidental  or 
fraud  of  the  mortgagee.    1  Spence,  Eq.  p.  G02. 
ii  action  for  relief  from  a  penalty  incurred  for  failure  to  repair  a 
bank  within  the  time  agreed  was  sustained,  on  the  gi'ound  that  plain- 
tiff had  been  prevented  from  executing  his  contract  by  reason  of  unexpected 
luction  to  Calendars  of  Chancery,  vol.  1,  p.  142. 
•  Bl   !  w&j,  6  Yes.  812. 


Ch.  7]  ACCIDENT.  115 

equal  footing  in  equity,  there  will  be  no  interference  with  their  legal 
rights,  under  the  maxim  that,  when  the  equities  are  equal,  the  law 
prevails.  Thus,  accident  preventing  the  execution  of  a  will,  or 
causing  it  to  be  improperly  executed,  is  no  ground  for  relief  against 
the  heir.5  And,  generally,  against  a  bona  fide  purchaser  for  value 
without  notice,  equity  will  not  interfere  on  the  ground  of  accident.6 
On  similar  grounds,  equity  will  not  relieve  against  accident  in  mat- 
ter of  positive  contract,  where  the  possibility  of  accident  may  fairly 
be  considered  to  have  been  within  the  contemplation  of  the  contract- 
ing parties.  Thus,  independent  of  statute,  a  lessee  will  not  be  re- 
lieved from  his  covenant  to  pay  rent  or  to  repair  because  of  the  ac- 
cidental destruction  of  the  premises.1 

Inadequate  Remedy  at  Law. 

We  have  already  seen  that  the  enlargement  of  legal  remedies  does 
not  divest  courts  of  equity  of  any  part  of  their  ancient  jurisdiction; 
and  the  question  on  this  branch  of  the  subject  is  therefore  whether 
there  has  always  been  an  adequate  remedy  at  law.8  Now,  courts  of 
law  have  always  recognized  the  plea  of  "vis  major"  or  the  "act  of 
God."  These  terms  are  not,  indeed,  understood  in  a  wide  sense;  but 
only  as  including  "events  which,  as  between  the  parties,  and  for 
the  purposes  of  the  matter  in  hand,  cannot  be  definitely  foreseen  or 
controlled."0  Thus,  when  the  performance  of  a  contract  depends 
on  the  existence  of  a  specific  thing,  and,  by  the  accidental  destruc- 
tion of  that  thing,  performance  becomes  impossible,  the  contract  is 
no  longer  enforceable  at  law.10  The  law  implies  a  condition  that 
the  contract  shall  cease  if  a  thing  necessary  to  its  performance  per- 
ishes without  default  of  the  contractor.    For  similar  reasons,  a  con- 

s  Whitton  v.  Russell,  1  Atk.  448. 

e  Maiden  v.  Menill,  2  Atk.  8.    See,  also,  ante,  104. 

7  Bullock  v.  Domraitt,  6  Term  R.  650;  Jfym  v.  Blackburn,  3  Ves.  34,  38; 
Fowler  v.  Bott,  G  Mass.  63;  Hallett  v.  Wylie,  3  Johns.  44.  So,  also,  one  who 
has  contracted  to  raise  and  deliver  a  specific  quantity  of  seeds  will  not  be 
relieved  from  his  contract  because  of  the  accidental  destruction  of  his  crop. 
Anderson  v.  May,  50  Minn.  280,  52  N.  W.  530. 

s  Ante,  11. 

»  Pol.  Cont.  (4th  Ed.)  567. 

io  Taylor  v.  Caldwell,  3  Best  &  S.  826;  Howell  v.  Coupland,  L.  R.  9  Q.  E 
462. 


H6  GROUNDS    FOR    EQUITABLE    RELIEF.  [Ch.  7 

trail  for  personal  services  is  deemed  to  be  conditioned  upon  the  eon- 
tinuance  ol  the  life  and  health  of  the  contracting  party.11 

Turning  now  i<»  the  consideration  of  cases  when  accident  is  a 
ground  for  equitable  relief,  the  first  and  perhaps  most  important  class 
is  that  of  lost  instruments.  In  the  case  of  lost  bonds  and  sealed  in- 
struments, not  «uily  did  the  courts  of  law  originally  refuse  to  dispense 
with  proferl  ami  oyer  of  the  bond,  but  equity  alone  had  the  power  of 
imposing  just  conditions  on  plaintiff  by  requiring  from  him  a  suita- 
ble  bond  of  indemnity.18  So,  also,  equity  has  jurisdiction  to  grant 
relief  in  the  case  of  lost  negotiable  instruments  and  other  simple 
contracts,  on  the  ground  that  it  alone  could  originally  protect  de- 
fendant by  requiring  a  bond  of  indemnity.13 

Another  class  of  cases  affording  ground  for  equitable  relief  is 
where  a  person  in  a  fiduciary  capacity  has  paid  money  in  reliance 
on  the  sufficiency  of  the  trust  estate,  and  it  has  subsequently,  with- 
out his  fault,  been  stolen  and  destroyed.  Instances  of  this  kind 
are  supplied  by  cases  in  which  the  goods  of  the  testator  have  been 
Btolen  without  any  negligence  on  the  part  of  his  executor,1*  or  have 
1,.  en  destroyed  or  damaged  by  fire  or  otherwise,15  and  also  by  cases 
in  which  an  executor  has  reckoned  as  an  asset  a  debt  which  he  sup- 
posed  to  be  still  due,  but  which  proves  in  fact  to  have  been  paid 
to  testator.18 

A  third  class  of  cases  in  which  equity  will  afford  relief  is  against 
judgments  at  law,  where  a  defendant  has  been  prevented  from 
availing  himself  of  a  good  defense  on  the  merits  by  accident,  unmixed 
with  negligence  or  fraud  on  his  part." 

ii  Fan-ow  v.  Wilson,  L.  R.  4  C.  P.  744. 

12  Ex  parte  Greenway,  6  Ves.  812;  Patton  v.  Campbell,  70  111.  72;  Bohart 
v.  (  hamberlain,  99  Mo.  022,  13  S.  W.  83;  Griffin  v.  Fries,  23  Fla,  173,  2  South. 
jti'i;  Livingston  v.  Livingston,  4  Johns.  Ch.  294.  Lost  mortgage,  Lawrence 
v.  Lawrence,  lu  X.  H.  109. 

is  Lost  negotiable  instruments,  Hansard  v.  Robinson,  7  Barn.  &  C.  90;  Sa- 
vannah Nat  Bank  v.-Haskins,  101  Mass.  370;  City  of  Bloomington  v.  Smith, 
I-'.:  I  ml.  41,  23  N.  E.  972;  Force  v.  City  of  Elizabeth,  27  N  J.  Eq.  408.  Other 
simple  contracts,  Macartney  v.  Graham,  2  Sim.  2S5;  Hardeman  v.  Battersby, 
i.  36.  38. 

i'  Junes  v.  Lewis,  2  Yes.  Sr.  240. 

is  Clough  v.  Bond,  3  Mylne  &  C.  490,  496. 

is  Pooley  v.  Lay.   1  1'.  Wins.  355. 

it  Herbert  v.  Herbert,  49  N.  J.  Eq.  70,  22  Atl.  789;    Buchanan  v.  Griggs,. 


Ch.   7]  MISTAKE.  117 

Again,  whenever  a  penalty  or  a  forfeiture  has  been  incurred 
through  accident,  unmixed  with  negligence  or  fraud,  equity  will 
afford  relief,18  even  though  it  would  not  be  warranted  in  so  doing 
under  the  principles  heretofore  discussed  relating  to  penalties  and 
forfeitures.19 

MISTAKE. 

77.  Mistake,  in  its  legal  sense,  exists  when  a  person 
acting  on  some  erroneous  mental  conception  or  convic- 
tion, either  of  law  or  of  fact,  executes  some  instrument  or 
does  some  act  which  but  for  that  erroneous  conception 
or  conviction  he  would  not  have  executed  or  done.20 

Mistake  indicates  a  mental  condition  of  one  or  both  of  the  par- 
ties concerned,  and  has  reference  to  a  state  of  things  existing  when 
the  contract  or  other  transaction  in  question  takes  place.  In  these 
respects  it  differs  from  accident,  which,  as  we  have  seen,  refers  to 
some  event  which  occurs  subsequent  to  the  transaction,  and  relates 
to  facts  wholly  external  to  the  parties.21 

The  indefiniteness  characteristic  of  the  earlier  equity  jurisprudence 
was  long  retained  in  that  branch  which  dealt  with  relief  on  the 
ground  of  mistake.  Except  in  cases  for  specific  performance,  the 
effect  of  mistake  on  a  contract,  unaccompanied  by  fraud  or  misrep- 

18  Neb.  121,  24  N.  W.  452;  New  York  &  H.  R.  Co.  v.  Haws,  56  N.  Y.  175; 
Holland  v.  Trotter,  22  Grat.  136;  Darling  v.  Mayor,  etc.,  of  Baltimore,  51  Md. 
1;  Barber  v.  Rukeyser,  39  Wis.  590.  Statutes  in  many  states  give  a  right  to 
a  new  trial  in  this  class  of  cases,  and  the  equitable  remedy  is  to  some  extent 
disused.    See,  also,  post,  294. 

is  Bostwick  v.  Stiles,  35  Conn.  195;  Wheeler  v.  Connecticut  Mut.  Life  Ins. 
Co.,  82  N.  Y.  543,  550;  Kopper  v.  Dyer,  59  Vt.  477,  9  Atl.  4;  Palmer  v.  Ford, 
70  111.  369;  Hill  v.  Barclay,  18  Yes.  56,  58,  62;  Jones  v.  Lewis,  2  A'es.  Sr.  240. 

is  Ante,  107  et  seq. 

20  Haynes,  Eq.  p.  80.  Prof.  Pomeroy's  definition  is  as  follows:  Mistake 
"is  an  erroneous  mental  condition,  conception,  or  conviction,  induced  by  ig- 
norance, misapprehension,  or  misunderstanding  of  the  truth,  but  without 
negligence,  and  resulting  in  some  act  or  omission  done  or  suffered  erroneously 
by  one  or  both  the  parties  to  a  transaction,  but  without  its  erroneous  charac- 
ter being  intended  or  known  at  the  time." 

2i  Smith,  Prin.  Eq.  p.  217. 


118  GROUNDS    FOR    EQUITABLE    RELIEF.  [Ch.  7 

resentation,  came  chiefly  before  courts  of  law.22  The  earlier  theory 
of  equity  sr,  ms  t.»  have  been  that  mistake,  whether  of  fact  or  of  law, 
ground  for  relief  in  all  eases.23  Such,  however,  is  no  longer 
the  law.  It  is  an  almost  universal  rule  that  a  man  is  bound 
by  an  agreement  to  which  he  has  expressed  his  assent  in  unequivocal 
terms,  uninfluenced  by  falsehood,  violence,  or  oppression.  If  he  has 
exhibited  all  the  outward  signs  of  agreement,  the  law  will  hold  that 
he  has  agreed.  As  a  rule,  a  person  cannot  avoid  his  contract  by 
simply  showing  that  lie  has  made  a  mistake.24  There  are  excep- 
tions to  this  rule,  even  at  law.  and  still  more  in  equity;  and  the  ques- 
tion when  mistake  is  ground  for  relief  in  equity  will  now  be  dis- 
cussed. 

SAME— CLASSIFICATION  OF  MISTAKE. 

78.  Mistake  may  be  classified  as  either: 

(a)  Of  law,  or 

(b)  Of  fact. 

SAME— MISTAKE  OF  LAW. 

79.  Equity  -will  not  grant  relief  merely  on  the  ground 
that  there  has  been  a  mistake  of  law,  but  there  must  be 
some  other  additional  fact  which  is  sufficient  to  call  forth 
the  remedial  power  of  equity. 

The  maxim  "Ignorance  of  law  is  no  excuse"  is  applied  as  well 
in  courts  of  equity  as  in  courts  of  law.  The  ground  was  long  ago 
stated  by  Lord  Ellenborough:  "Every  man  must  be  taken  to  be 
cognizant  of  the  law;  otherwise  there  is  no  saying  to  what  extent 

22  Pol.  Cont.  (5th  Ed.)  p.  444. 

23  Francis,  in  bis  treatise  on  Equity,  written  in  1737,  says  (page  10):  "An- 
other impediment  of  assent  is  ignorance  and  error,  whether  in  fact  or  in  law; 
and,  if  the  mistake  is  discovered  before  any  step  is  taken  towards  perform- 
ance, it  is  just  that  he  should  have  liberty  to  retract,  at  least  upon  satisfying 
the  other  of  the  damage  that  he  has  sustained  in  losing  his  bargain.  But  if 
the  contract  is  cither  wholly  or  in  part  performed,  and  no  compensation  can 
be  given  him,  then  it  is  absolutely  binding,  notwithstanding  the  error.  Yet 
this  is  not  to  be  understood  when  there  proves  to  be  an  error  in  the  thing  or 
subject  for  which  he  bargained." 

2*  Anson,  Cont  p.  122;    Pol.  Cont.  (4th  Ed.)  p.  392. 


Ch.  7]  MISTAKE.  119 

the  ignorance  might  not  be  carried.  It  would  be  urged  in  almost 
every  case." 25  However,  the  presumption  that  every  one  knows 
the  law  does  not  extend  to  the  laws  of  foreign  countries  or  states/6 
or  to  private  statutes,27  and  hence  mistakes  as  to  them  are  treated 
as  mistakes  of  fact.  The  cases  in  which  the  rule  itself  has  been 
applied  are  very  numerous.28  Thus,  it  is  settled  that,  when  money 
has  been  voluntarily  paid  under  a  mistake  of  law,  a  court  of  equity 
will  not  order  its  repayment;29  and  it  has  even  been  held  that  the 
reversal  or  modification,  by  subsequent  decisions,  of  the  law  on  which 
the  parties  acted,  is  no  ground  for  equitable  relief.30 

When  Relief  will  be  Granted  in  Equity. 

It  is  doubtful  whether  any  exceptions  really  exist  to  the  general 
principle  that  equity  will  not  relieve  against  a  mistake  of  law ;  and 
it  is  believed  that  relief,  whenever  given,  may  be  grounded,  not  on 
the  mere  fact  that  there  was  a  mistake  of  law,  but  on  some  other 
fact,  which  is,  independent  of  that,  efficacious  to  call  forth  the  reme- 
dial power  of  equity.31     Thus,  where  the  mistake  of  law  is  occasioned 

25  Bilbie  v.  Lumley,  2  East,  469,  where  it  was  held  that  money  paid  with 
knowledge  of  all  the  facts,  but  in  ignorance  of  the  parties'  legal  rights,  could 
not  be  recovered  back. 

ze  Leslie  v.  Baillie,  2  Young  &  C.  Ch.  91;  McCormick  v.  Garnett,  5  De  Gex, 
M.  &  G.  278;  Haven  v.  Foster,  9  Pick.  Ill;  Morgan  v.  Bell,  3  Wash.  576,  28 
Pac.  925. 

27  Earl  of  Pomfret  v.  Lord  Windsor,  2  Ves.  Sr.  472,  480. 

28  Hunt  v.  Rousmanier,  8  Wheat  174;  Kenyon  v.  Welty,  20  Cai.  637;  State 
v.  Pa  up,  13  Ark.  129;  Stoddard  v.  Hart,  23  N.  Y.  556;  Peters  v.  Florence, 
38  Pa.  St.  194;  Allen  v.  Galloway,  30  Fed.  466;  De  Give  v.  Healey,  60  Ga. 
391;  Ottenheimer  v.  Cook,  10  Heisk.  (Tenn.)  309;  Bledsoe  v.  Nixon,  68  N.  C. 
521;  Williamson  v.  Hitner,  79  Ind.  233;  Stewart  v.  Stewart,  6  Clarke  &  F. 
911,  966;   Powell  v.  Smith,  L.  R.  14  Eq.  85. 

29  Rogers  v.  Ingham,  3  Ch.  Div.  351,  356,  357;  Railroad  Co.  v.  Soutter,  13 
Wall.  517,  524;  Haven  v.  Foster,  9  Pick.  112;  Storrs  v.  Barker,  6  Johns.  Ch. 
166;  Beard  v.  Beard,  25  W.  Va.  486;  Erkens  v.  Nicolin,  39  Minn.  461,  40 
N.  W.  567.  An  exception  exists,  however,  where  money  has  been  paid  under 
a  mistake  of  law,  to  an  officer  of  the  court,— as  a  receiver  or  trustee  in  bank- 
ruptcy,—based  on  the  consideration  that  the  court  should  set  an  example  of 
honesty  higher  than  it  would  be  justified  in  enforcing  on  litigants  before  it 
Ex  parte  James,  9  Ch.  App.  609;  Ex  parte  Simmonds,  16  Q.  B.  Div.  308;  Dixon 
v.  Brown.  32  Ch.  Div.  597. 

so  Jacobs  v.  Morange,  47  N.  Y.  57;    Baker  v.  Pool,  56  Ala.  14;    Kenyon  v. 
Welty,  20  Cal.  637;    Lyon  v.  Richmond,  2  Johns.  Ch.  60. 
si  Smith,  Prin.  Eq.  p.  200;    Snell's  Eq.  p.  525. 


120  GROUNDS    10R    EQUITABLE    RELIEF.  [Ch.   7 

by  fraud,  imposition,  or  misrepresentation,  a  party  suffering  thereby 
may  haw  relief  in  equity.88  There  need  not  even  be  actual  fraud, 
l.ii t  it  is  sufficient  if  one  of  the  parties,  availing  himself  of  the  op- 
portunities afforded  by  the  mistake,  will  take  an  unconscionable 
advantage  of  thcother;88  but  here,  as  before,  the  true  ground  of 
k  lief  is  do1  i  he  mistake  of  law,  but  the  fraud  which  is  implied. 

Bo,  also,  a  contract  entered  into  under  a  mistake  of  law  by  both 
parties  will  not  be  enforced  in  equity  when  the  effect  of  the  mistake 
is  Buch  as  to  make  the  contract  something  entirely  different  from 
what  they  intended.  In  such  a  case  there  is  indeed  no  contract  at 
all,  the  mutual  agreement  being  different  in  substance  from  that 
winch  legally  springs  from  their  acts.  The  question  here  is  not 
whether  a  mistake  of  law  will  avoid  a  contract,  but  whether  there 
ever  was  a  contract.84  The  case  is  quite  analogous  where  an  agree- 
ii!'  nt  which  has  been  made  is  erroneously  expressed  through  a  mis- 
take  of  law.  Here,  again,  to  refuse  relief  against  the  erroneous  ex- 
asion  would  be  to  hold  the  parties  to  an  agreement  which  they 
never  made.86  Another  class  of  cases,  closely  approaching  these,  is 
where  an  act,  performed  in  ignorance  of  a  legal  right,  has  been  re- 
versed on  the  ground  of  mere  surprise.36  But,  where  a  contract  is 
written  as  the  parties  intended  it  to  be,  the  mere  fact  that  they 
misconceived  the  legal  effect  of  the  words  employed  is  no  ground 
for  equitable  relief.37 

bs  Willan  v.  Willan,  16  Ves.  72;  Bales  v.  Hunt,  77  Ind.  355;  Kyle  v.  Fehley 
81  Wis.  67,  51  N.  W.  257;   Moreland  v.  Atchison,  19  Tex.  303. 

33  Benson  v.  Markoe,  37  Minn.  30,  33  N.  W.  38;  Jordan  v.  Stevens,  51  Me. 
78;  Champlin  v.  Laytin,  18  Wend.  407,  422;  Green  v.  Morris  &  E.  It.  Co., 
12  N.  J.  Eq.  165;  Tyson  v.  Passmore,  2  Pa.  St  122;  Insurance  Co.  v.  Raden. 
87  Ala.  311,  5  South.  876;  Snell  v.  Insurance  Co.,  98  U.  S.  85,  90,  92;  Allen 
v.  Elder,  76  Ga.  674;  Kornegay  v.  Everett,  99  N.  C.  30,  5  S.  E.  418. 

«<  Pol.  Cont.  (4th  Ed.)  412. 

ss  Hunt  v.  Rousmanier,  8  Wheat.  174;  Pitcher  v.  Hennessey,  48  N.  Y. 
415;  Canedy  v.  Marcy,  13  Gray,  375,  377;  Stone  v.  Hale,  17  Ala.  557;  Lant's 
Appeal,  95  Pa.  St  279;  Whitmore  v.  Hay  (Wis.)  55  N.  W.  708;  Evants  v. 
le,  11  Ohio,  480.    See,  also,  post,  127. 

se  Pusey  v.  Desbouvrie,  3  P.  Wms.  315,  321;  Cochrane  v.  Willis.  1  Ch.  App.  58: 
Tyson  v.  Tyson,  31  Md.  134;  Jones  v.  Munroe,  32  Ga.  181;  Harney  v.  Charles, 
45    Mo.   157. 

37  Powell  v.  Smith,  L.  R.  14  Eq.  85,  90;  Hunt  v.  Rousmanier,  8  Wheat.  174, 
1;  Fowler  v.  Black,  136  HI.  363,  26  N.  E.  596;  Caldwell  v.  Depew,  40 
Minn.  528,  42  N.  W.  479;    Kelly  v.  Turner,  74  Ala.  513. 


Ch.   7]  MISTAKE.  121 

Again,  a  transaction  entered  into  by  a  party  under  a  mistake  as 
to  his  own  antecedent  or  existing  private  legal  rights  or  liabilities 
will  be  treated  in  equity  as  really  a  mistake  of  fact,  rather  than  of 
law.38  However,  the  foregoing  rule  has  no  application,  where  the 
parties,  without  fraud  or  imposition,  have  entered  into  a  compromise 
for  the  express  purpose  of  settling  some  doubtful  private  legal 
rights; 39  and  especially  is  this  the  case  where  the  compromise  is  of 
the  nature  of  a  family  arrangement.40 

38  2  Pom.  Eq.  Jur.  §  849.  The  meaning  of  this  proposition  is  well  illustrated 
by  the  language  of  Jessel,  M.  R.,  in  Eaglesfield*  v.  Marquis  of  Londonderry, 
4  Ch.  Div.  693,  702,  703:  "A  misrepresentation  of  law  is  this:  When  you  state 
the  facts,  and  state  a  conclusion  of  law,  so  as  to  distinguish  between  the  facts 
and  the  law,  the  man  who  knows  the  facts  is  taken  to  know  the  law.  But 
when  you  state  that  as  a  fact  which  no  doubt  involves,  as  most  facts  do,  a 
conclusion  of  law,  that  is  still  a  statement  of  fact,  and  not  a  statement  of  law. 
Suppose  a  man  is  asked  by  his  tradesman  whether  he  can  give  credit  to  a  lady, 
and  the  answer  is:  'You  may.  She  is  a  single  woman,  of  large  fortune.'  It 
turns  out  that  the  man  who  gave  that  answer  knew  that  the  lady  had  gone 
through  the  ceremony  of  marriage  with  a  man  who  was  believed  to  be  a  mar- 
ried man,  and  that  she  had  been  advised  that  the  marriage  ceremony  was 
null  and  void,  though  it  had  not  been  declared  so  by  any  court,  and  it  after- 
wards turned  out  that  they  were  all  mistaken,— that  the  first  marriage  of  the 
man  was  void,  so  that  the  lady  was  married.  He  does  not  tell  the  tradesman 
all  these  facts,  but  states  that  she  is  single.  That  is  a  statement  of  fact.  If 
he  had  told  him  the  whole  story  and  all  the  facts,  and  said,  'Now,  you  see 
the  lady  is  single,'  that  would  have  been  a  misrepresentation  of  law.  But 
the  single  fact  he  states— that  the  lady  is  unmarried— is  a  statement  of  fact, 
neither  more  nor  less;  and  it  is  not  the  less  a  statement  of  fact  that,  in  order 
to  ai-rive  at  it,  you  must  know  more  or  less  of  the  law."  See,  also,  Cooper  v. 
Phibbs,  L.  R.  2  H.  L.  149;  Broughton  v.  Hutt,  3  De  Gex  &  J.  501,  504;  Blake- 
man  v.  Blakeman,  39  Conn.  320;  Gerdine  v.  Menage,  41  Minn.  417,  43  N.  W. 
91;  Lovell  v.  Wall,  31  Fla.  73,  12  South.  G59;  Morgan  ?.  Bell,  3  Wash.  57G, 
28  Pac.  925. 

39  Pickering  v.  Pickering,  2  Beav.  56;  Naylor  v.  Winch,  1  Sim.  &  S.  5G4; 
Miles  v.  New  Zealand  Alford  Estate  Co.,  32  Ch.  Div.  266;  Gormly  v.  Gormly, 
130  Pa.  St.  467,  18  Atl.  727;  Hall  v.  Wheeler,  37  Minn.  522,  35  N.  W.  377; 
Bell  v.  Lawrence,  51  Ala.  160;  Dailey  v.  King,  79  Mich.  568,  44  N.  W.  959; 
Allen  v.  Galloway,  30  Fed.  466. 

40  in  Westby  v.  Westby,  2  Dru.  &  War.  505,  Lord  St.  Leonards  said:  "Wher- 
ever doubts  and  disputes  have  arisen  with  regard  to  the  rights  of  different 
members  of  the  same  family,  and  fair  compromises  have  been  entered  into,  to 
preserve  the  harmony  and  affection,  or  to  save  the  honor  of  the  family,  then 


122  GROUNDS    FOB    EQUITABLE    RELIEF.  [Cll.  7 

SAME— MISTAKE  OF  FACT. 

80.  Mistake  of  fact  may  be: 

(a)  Fundamental,  in  which    case   it   prevents    any- 

real  contract  from  being  formed  between  the 
parties. 

(b)  Unilateral  as  to  subject-matter. 

(c)  Of  expression. 

In  the  discussion  of  this  subject  it  should  be  borne  in  mind  that 
the  general  rule  is  that  mere  mistake  does  not  render  a  transaction 
void  or  voidable;  and  that  the  cases  in  which  relief  is  granted, 
though  very  numerous,  are  really  exceptions  to  the  general  rule.41 
In  addition  to  the  classes  above  mentioned,  there  is  another  in  which 
application  is  made  to  a  special  and  discretionary  jurisdiction  of 
equity,  in  the  exercise  of  which  courts  of  equity  are  particularly  care- 
ful that  their  decrees  shall  not  be  productive  of  hardship.  This 
.lass  consists  almost  wholly  of  suits  for  specific  performance,  and 
will  be  discussed  under  that  head.42 

SAME— FUNDAMENTAL  MISTAKE  OF  FACT. 

81.  A  fundamental  mistake,  which  prevents  any  real 
contract  from  being-  formed  between  the  parties,  is  ground 
for  relief  both  at  law  and  in  equity. 

Contract  requires  consensual  agreement;  and  if,  owing  to  some 
error  on  one  or  both  sides,  the  parties  never  had  a  common  intention, 
it  follows  that  no  contract  is  formed.  Errors  of  this  kind  preveut  a 
contract  from  being  binding  both  at  law  and  in  equity.  In  the  dis- 
cussion of  the  subject,  however,  illustrations  will  chiefly  be  taken 
from  cases  which  have  usually  fallen  under  the  special  notice  of 
equity. 

arrangements  have  been  sustained  by  this  court;  albeit,  perhaps,  resting  on 
grounds  which  would  not  have  been  considered  satisfactory  if  the  transaction 
had  occurred  between  mere  strangers." 

«  See  ante,  118. 

'-  See  post,  270. 


Ch.   7]  MISTAKE.  123 

Mistake  as  to  Nature  of  Transaction. 

There  may  be  a  fundamental  mistake  as  to  the  nature  of  the 
transaction  itself;  but  this  must  needs  be  of  rare  occurrence,  for  men 
are  not  apt  to  enter  into  engagements  of  the  nature  of  which  they 
are  ignorant.  A  case  like  this  must  arise  almost  of  necessity  from 
the  misrepresentation  of  a  third  person;  for,  if  it  proceeds  from  the 
other  party  to  the  contract,  the  ground  for  avoidance  would  be  mis- 
representation or  fraud,  and  not  mistake.  On  the  other  hand,  if 
there  is  no  misrepresentation,  the  contract  cannot  be  avoided  on  the 
ground  that  one  of  the  parties  failed  to  apply  his  mind  to  its  contents, 
or  that  he  did  not  suppose  it  would  have  any  legal  effect,43 

Mistake  as  to  Person  with  Whom  Contract  is  Made. 

Where  it  is  of  the  very  essence  of  the  intention  of  one  of  the  con- 
tracting parties  to  deal  with  another  particular  person,  a  mistake  as 
to  the  person  will  invalidate  the  agreement.44  Thus,  a  note  executed 
under  the  belief  that  the  maker  owes  the  payee,  when  in  fact  the 
debt  is  owing  to  another  person  of  the  same  name,  will  be  can- 
celed in  equity.45  This  rule  does  not,  however,  apply  where  the 
personality  of  the  parties  is  quite  immaterial,  such  as  a  sale  of  goods 
for  ready  money.  It  should  be  observed  that  mistakes  under  this 
head  are  almost  necessarily  unilateral. 

Mutual  Mistake  as  to  Subject- Matter. 

Where  the  subject-matter  in  contemplation  of  the  parties  does  not 
in  fact  exist  at  the  time  of  the  agreement,  and  the  mistake  is 
common  to  both  parties,  the  agreement  is  void.48  On  this  principle, 
a  contract  for  the  sale  of  shares  in  a  corporation  is  void  if,  at  the  time 
of  the  agreement,  a  winding-up  petition  has  been  presented,  of  which 
neither  the  vendor  nor  the  purchaser  knew.47  So,  also,  where  both 
the  beneficiary  of  a  life  insurance  policy  and  the  company  are  ig- 

43  Hunter  v.  Walters,  7  Ch.  App.  81;  Foster  v.  Mackinnon,  L.  R.  4  C.  P.  704, 
711;  Kennedy  v.  Green,  3  Mylne  &  K.  699,  718.  A  bin  or  sale  cannot  be 
avoided  because  the  party  supposed  she  was  signing  a  note,  where  there  was 
no  fraud  or  misrepresentation  of  the  other  party.  Gage  v.  Phillips,  21  Nev. 
150,  26  Pac.  60.     See,  also,  Cannon  v.  Lindsey,  85  Ala.  198,  3  South.  676. 

44  Boulton  v.  Jones,  2  Hurl.  &  N.  564;  Boston  Ice  Co.  v.  Potter,  123  Mass.  28. 

45  Fitzmaurice  v.  Mosier,  116  Ind.  363,  16  N.  E.  175,  and  19  N.  E.  180. 
4«  Couturier  v.  Hastie,  5  H.  L.  Cas.  675;  Allen  v.  Hammond,  11  Pet  65. 
47  Emmerson's  Case,  1  Ch.  App.  433. 


1  _'  J  tUNDS    Voll    EQUITABLE    RELIEF.  [Ch.   7 

noranl  of  the  death  of  the  insured  when  the  policy  is  surrendered, 
and  a  paid-up  policy  for  a  Bmaller  amount  is  issued  in  its  place, 
equity  will  reinstate  the  beneficiary  to  his  rights  in  the  surrendered 
policy.4"  Similarly,  a  Bale  of  land  entered  into  by  both  parlies 
under  the  belief  thai  the  vendor's  ancestor,  through  whom  he  derives 
title,  is  dead,  will  be  set  aside  where  it  afterwards  appears  that  the 
jtor  is  in  fact  alive.49  If,  in  such  cases,  the  mistake  is  con- 
fined to  one  of  the  parties,  the  agreement  is  prima  facie  valid;  but  it 
will  usually  be  found  that  there  is  some  ingredient  of  fraud  involved 
which  will  make  ii  voidable  at  the  option  of  the  mistaken  party. 

Again,  a  mistake  as  to  the  nature  or  fundamental  qualities  of  the 
subject-matter,  so  that  it  goes  to  the  whole  substance  of  the  agree- 
ment, and  renders  the  subject-matter  contracted  for  essentially 
differenl  in  kind  from  the  thing  as  it  actually  exists,  may  avoid  the 
contract  Thus,  equity  will  set  aside  a  sale  of  land  entered  into 
by  both  parties  under  the  belief  that  it  is  underlaid  with  coal,50  or 
covered  with  standing  pine,51  where  it  appears  that  the  land  has  no 
value  whatever  for  mining  or  lumbering.  So,  also,  a  belief  by  both 
parties  to  a  deed  that  the  land  conveyed  includes  land  on  which  a 
building  is  located,  which  was  the  main  inducement  to  the  purchase, 
is  ground  for  rescission.52    In  the  foregoing  class  of  cases  the  agree- 

<8  Riegel  v.  American  Life  Ins.  Co.,  153  Pa.  St.  134,  25  Atl.  1070. 

*»  Fleetwood  v.  Brown  (Ind.  Sup.)  9  N.  E.  352.  So,  also,  a  contract  for  the 
sale  of  a  life  interest  after  it  has  in  fact,  though  without  the  knowledge  of  the 
parties,  expired,  is  void.  Cochrane  v.  Willis,  1  Ch.  App.  58;  Strickland  v. 
Turner,  7  Exch.  208. 

so  Fritzler  v.  Robinson,  70  Iowa,  500,  31  N.  W.  61. 

(si  Thwing  v.  Lumber  Co.,  40  Minn.  1S4,  41  N.  W.  815. 

rth  v.  Deuel,  11  Colo.  494,  19  Pac.  471.  Further  illustrations:  A  mu- 
tual mistake  as  to  the  quantity  of  land  conveyed  is  ground  for  rescission, 
where  the  deGciency  materially  affects  the  value.  Newton  v.  Tolles  (N.  H.) 
19  Atl.  1092.  Equity  will  set  aside  a  contract  for  the  sale  of  the  vendor's 
entire  interest  in  land  when  both  parties  believed  such  interest  to  be  an  undi- 
vided one-fifth,  and  in  fact  it  was  an  undivided  three-fifths.  Cleghorn  v. 
/aim  wait,  83  Cal.  1. ")."»,  'S.>,  Pac.  294.  A  belief  that  a  county  seat  has  been  legally 
removed  is  such  a  mistake  of  fact  as  will  authorize  a  rescission  of  a  deed  of 
land  to  the  county,  to  be  used  for  a  courthouse  site,  when  it  is  afterwards 
judicially  declared  that  the  proceedings  for  the  removal  were  illegal,  and  that 
no  removal  has  in  fact  taken  place.  Griffith  v.  Sebastian  Co.,  49  Ark.  24,  3  S. 
w.  886.    The  sale  of  a  blooded  cow  for  a  small  sum,  under  the  mutual  belief 


Ch.  7]  MISTAKE.  125 

ment  is  void  only  if  the  error  is  mutual.53  If  only  one  of  the  parties 
is  mistaken,  it  depends  on  circumstances  now  to  be  considered 
whether  or  not  the  agreement  is  voidable  at  his  option. 

SAME—UNILATERAL    MISTAKE     AS    TO     SUBJECT-MATTER. 

82.  The  circumstance  that  one  of  the  parties  has  entered 
into  an  agreement  under  the  influence  of  a  mistake  of 
fact  as  to  the  subject-matter  has  no  legal  effect,51  unless 

(a)  The  fact  is  material  to  the  transaction;  or,  in  other 

words,  is  essential  to  its  character. 

(b)  The  mistake  is   not  due   to   the  negligence   of  the 

mistaken  party. 

(c)  The  fact  is    one   -which  the  party  who  has  knowl- 

edge of  it  is  under  an  obligation  to  disclose. 

Fact  Material  to  Transaction. 

A  fact  may  be  said  to  be  material  when  the  formation  of  the  con- 
tract is  conditional  on  its  existence.  The  mistake  must  go  to  the 
essence  of  the  object  in  view,  and  not  be  merely  incidental.55  It  has 
accordingly  been  held  that  the  mere  fact  that  a  purchaser  of  mineral 
land  supposes  an  abandoned  shaft  to  be  located  on  the  land  is  no 
ground  for  rescission  in  equity,  when  it  does  not  appear  that  this  mis- 
take induced  him  to  purchase.56  Nor  does  the  circumstance  that  one 
of  the  parties  is  mistaken  as  to  a  material  fact  entitle  him  to  equi- 
table relief  in  every  instance.  The  mistake,  as  we  shall  hereafter 
see,  must  not  be  due  to  his  own  negligence.57     So,  also,  if  parties 

that  she  is  barren,  is  void,  when  it  afterwards  turns  out  that  she  was  not  bar- 
ren at  the  time  of  the  sale,  and  therefore  worth  a  large  sum  for  breeding  pur- 
poses. Sherwood  v.  Walker,  66  Mich.  568,  33  N.  W.  919.  See,  also,  Chapman 
v.  Cole,  12  Gray,  141. 

5s  Smith  v.  Hughes,  L.  R.  6  Q.  B.  597. 

64  White  v.  Richmond  &  D.  R.  Co.,  110  N.  C.  456,  461,  15  S.  E.  197;  Klein- 
sorge  v.  Rohse  (Or.)  34  Pac.  874;  Page  v.  Higgins,  150  Mass.  27,  22  N.  E.  63; 
Hartford  Fire  Ins.  Co.  v.  Haas  (Ky.)  9  S.  W.  720;  Thomas  v.  Bartow,  48  N.  Y. 
193,  198. 

55  Grymes  v.  Sanders,  93  U.  S.  55,  60. 

66  Grymes  v.  Sanders,  93  U.  S.  55. 

67  Post,  126. 


L26 


GROUNDS    FOR    EQUITABLE    RELIEF.  [Ch.   7 


si  ami  on  an  equal  footing,  and  the  means  of  knowledge  are  open  to 
them  both,  either  of  (hem  is  entitled  to  the  benefit  of  his  own  judg- 
oient,  skill,  and  capacity.58  The  current  of  the  modern  cases,  espe- 
cially the  English,  seems  to  be  that  a  mistake  of  only  one  of  the 
parties  to  a  contract,  respecting  the  subject-matter,  though  material, 
is  qo  ground  for  equitable  relief,  unless  there  is  some  fiduciary  re- 
lation between  the  parties,  to  raise  an  independent  equity.59  A  party 
who  outers  into  a  contract  in  good  faith,  without  any  knowledge  of 
mistake  on  the  part  of  the  other,  ought  to  be  treated  as  a  bona  fide 
purchaser  without  notice,  and  so  be  unaffected  by  the  possible 
"equity"  arising  in  favor  of  the  mistaken  party. 
Negligence  of  Mistaken  Party. 

Equity  will  never  encourage  negligence;  and  it  accordingly  will 
not  grant  any  relief  against  a  mistake  of  fact,  however  material,  if 
it  be  such  that  complainant  might  have  avoided  it  by  reasonable 
diligence.80  The  mere  fact,  however,  that  he  might  possibly  have  ac- 
quired  accurate  knowledge  is  not  sufficient  to  debar  him  from  re- 
lief.61 
Obligation  to  Disclose  Knowledge. 

This  excludes  facts  the  means  of  information  as  to  which  are  open 
to  both  parties;   and  cases  in  which  each  party  is  presumed  to  ex- 
es Kerr.  Fraud  &  M.  408. 

68  See  cases  cited  in  note  54,  supra.  "Perhaps  some  of  the  cases  on  this  sub- 
ject go  too  far;  but  for  the  most  part  the  cases  where  a  defendant  has  escaped 
on  the  ground  of  mistake,  not  contributed  to  by  the  plaintiff,  have  been  cases 
when  a  hardship  amounting  to  injustice  would  have  been  inflicted  on  him  by 
holding  him  to  his  bargain,  and  It  was  unreasonable  to  hold  him  to  it."  Tam- 
plin  v.  James,  15  Ch.  Div.  215.  "The  court  of  equity  will  grant  relief  where 
only  the  party  complaining  makes  mistakes,  when  the  facts  and  circumstances 
give  rise  to  the  presumption  that  there  has  been  some  undue  influence,  misap- 
prehension, imposition,  mental  imbecility,  surprise,  or  confidence  abused. 
Mere  ignorance,  mere  inadequacy  of  consideration,  mere  weakness  of  mind, 
mere  mistake,  on  the  part  of  one  party,  will  not  entitle  that  party  to  relief. 
But  it  is  otherwise  when  there  is  a  combination  of  such  things  to  prejudice  the 
party."    Bean  v.  Railroad  Co.,  107  N.  C.  731,  747,  12  S.  E.  600. 

so  Grymes  v.  Sanders,  93  U.  S.  55;  Wier  v.  Johns  (Colo.  Sup.)  24  Pac.  262; 
Conner  v.  Welch,  51  Wis.  431,  8  N.  W.  260;  Duke  of  Beaufort  v.  Neeld,  12 
Clark  &  F.  248,  286. 

•  ■  W'illmott  v.  Barber,  15  Ch.  Div.  'M,  100;  Werner  v.  Itawson,  89  Ga.  620, 
15  S.  E.  813. 


Ch.  7]  MISTAKE.  127 

ercise  his  own  skill  and  judgment,  and  there  is  no  confidence  re- 
posed;62 and  also  facts  which  are  in  their  nature  doubtful,  and  as 
to  the  probabilities  of  which  each  may  be  supposed  to  calculate  in 
his  own  discretion.63  It  is  evident  that  this  qualification  almost,  if 
not  quite,  amounts  to  the  statement  that  a  unilateral  mistake  is  re- 
lieved against  only  when  nondisclosure  of  the  better  informed  party 
amounts  to  fraud.  Relief  will,  however,  be  given  if  there  be  a  duty 
to  disclose.  A  party  who  is  under  a  duty  to  disclose,  and  who,  there 
is  reason  to  believe,  knows  more  about  the  subject-matter  than  the 
other  party,  will  not  be  permitted  by  a  court  of  equity  to  hold  the 
latter  to  the  agreement.64 

SAME— MISTAKE    OF   EXPRESSION. 

83.  Mistake  of  expression  occurs  "whenever  an  agree- 
ment or  disposition  is  sought  to  be  embodied  in  a  formal 
instrument,  and  the  instrument  is  so  framed  as  not  to  ex- 
press clearly  or  truly  the  intention  of  the  parties  or  party. 
Such  mistake,  if  mutual,  will  be  rectified  in  equity. 

This  head  of  equity  really  rests  on  the  maxim  that  equity  regards 
substance  rather  than  form.  Whenever  it  clearly  appears  that  a 
written  instrument,  drawn  professedly  to  carry  out  the  agreement  of 
the  parties  previously  entered  into,  is  executed  under  the  misap- 
prehension that  it  really  embodies  the  agreement,  whereas,  by  mistake 
of  the  draftsman,  either  as  to  fact  or  law,  it  fails  to  fulfill  that  pur- 
pose, equity  will  correct  the  mistake  by  reforming  the  instrument 
in  accordance  with  the  contract.65     And  in  these  cases  it  is  entirely 

62  Kerr,  Fraud  &  M.  pp.  408,  414.  Where  there  is  no  such  relation  of  trust 
or  confidence  between  the  parties  as  imposes  on  one  an  obligation  to  give  full 
information  to  the  other,  the  latter  cannot  proceed  blindly,  omitting  all  in- 
quiry and  examination,  and  then  complain  that  the  other  did  not  volunteer  to 
give  all  the  information  he  had.    Dambmann  v.  Schulting,  75  N.  Y.  55. 

63  Bell  v.  Lawrence,  51  Ala.  160;  Anthony  v.  Boyd,  15  R.  I.  495,  8  Atl.  701, 
and  10  Atl.  657;  Stover  v.  Mitchell,  45  111.  213;  Mortimer  v.  Capper,  1  Browne, 
Ch.  158. 

64  McHarry  v.  Irvin,  85  Ky.  322,  3  S.  W.  374,  and  4  S.  W.  S00;  Epes  v.  Wil- 
liams' Adm'r  (Va.)  17  S.  E.  235;  Cocking  v.  Pratt,  1  Ves.  Sr.  400;  Millar  v. 
Craig,  6  Beav.  433. 

65  Trusdell  v.  Lehman,  47  N.  J.  Eq_.  218,  20  Atl.  391;  Keister  v.  Myers,  115 
Ind.  312,  17  N.  E.  161;   Adams  v.  Wheeler,  122  Ind.  251,  23  N.  E.  760;   Knight 


128  GROUNDS    FOR    EQUITABLE    RELIEF.  [Ch.  7 

immaterial  whether  the  mistake  is  one  of  law  or  of  fact;  equity 
will  granl  relief  in  either  case.66  But  the  mistake  must  be  mutual. 
An  agreement  cannot  be  affected  by  the  mistake  of  either  party  in 
expressing  his  intention,  of  which  the  other  party  has  no  knowl- 
edge.  Tii ns,  when  one  of  the  parties  signs  a  contract  which  con- 
tain- ilit-  whole  agreement  as  he  understands  it,  the  other  party  can- 
nut  asserl  thai  the  true  agreement  was  different  in  an  important  par- 
ticular, and  demand  a  reformation  accordingly.68  The  only  qualifica- 
tion to  the  foregoing  rule  is  this:  Where  a  written  contract  does 
no1  1 1 -uly  express  the  agreement  of  the  parties,  and  one  of  the  parties 
is  ignorant  of  this  fact,  the  other  party  who,  with  knowledge  of 
the  ignorance  of  the  other,  has  kept  silent  when  he  should  have 
spoken,  is  estopped  to  defeat  a  reformation  by  alleging  that  he  knew 
that  the  instrument  was  different  from  the  agreement.69 

Mistake  Apparent  on  Face  of  Instrument. 

Both  at  law  and  in  equity,  rules  for  the  interpretation  of  written 
instruments  have  been  established  from  ancient  times  in  order  to 
eliminate  mistakes  of  expression.  Thus,  clerical  errors  and  omis- 
sions which  could  be  certainly  supplied  from  the  context,  and  all 
mere  grammatical  mistakes,  were  remedied ; 70  the  context  of  a 
doubtful  expression  might  be  referred  to,  to  ascertain  its  meaning;71 
and  the  general  intent  was  always  regarded  as  prevailing  over  the 
pa  rticular  expression.72 

v.  Glasscock,  51  Ark.  390.  11  S.  W.  580;  Andrews  v.  Andrews,  81  Me.  337,  17 
Atl.  1GG. 

ea  Park  Bros.  &  Co.  v.  Blodgett  &  Clapp  Co.,  64  Conn.  28,  29  Atl.  133;  Lee 
v.  Percival,  85  Iowa.  639,  52  N.  W.  543.    See,  also,  ante,  120. 

67  Kerr,  Fraud  &  M.  409. 

Roemer  v.  Conlon,  45  N  J.  Eq.  234,  19  Atl.  664;   Ellison  v.  Fox,  38  Minn. 
454,  38  N.  W.  358. 

69  Roszell  v.  Roszed,  109  Ind.  354,  10  N.  E.  114;  Gray  v.  Supreme  Lodge,  etc., 
118  Ind.  295,  297,  20  N.  E.  833. 

to  Doe  d.  Leach  v.  Mickleni,  6  East,  486;  Redfern  v.  Bryning,  6  Ch.  Div.  133; 
Salt  v.  Pym,  28  Ch.  Div.  155;  Monmouth  Park  Ass'n  v.  Wallis  Iron  Works, 
55  N.  J.  Law,  132,  26  Atl.  140;  Ketchum  v.  Spurlock,  34  W.  Va.  597,  12  S.  E 
832. 

7i  Browning  v.  Wright,  2  Bos.  &  P.  15,  26;   2  Kent,  Comm.  *p.  555. 

72  Ford  v.  Beech,  11  Q.  B.  866. 


Ch.   7]  MISTAKE.  129 

Parol  Evidence  to  Show  Mistake. 

While  it  is  a  general  rule,  both,  at  law  and  in  equity,  that  oral  evi- 
dence is  not  admissible  to  vary  a  written  instrument,  yet  it  is  also 
well  settled  that  such  evidence  is  admissible  in  equity  to  show  that, 
either  because  of  accident,  mistake,  or  fraud,  the  instrument  does  not 
truly  express  the  meaning  of  the  parties;73  and  if  accident  or  mis- 
take is  clearly  proved  by  such  evidence,  or  is  admitted  by  the  other 
side,  or  is  evident  from  the  nature  of  the  case,  equity  will  rectify  it.74 

Mistakes  in   Wills. 

In  the  earlier  history  of  equity,  the  English  court  of  chancery  did 
not  scruple  to  alter  a  will  to  make  its  wording  conform  to  testator's 
presumed  intention.  If  "there  falleth  out  an  unseen  accident,  which, 
if  testator  had  foreseen,  he  would  have  altered  his  will,  I  shall  con- 
sider it,"  Lord  Nottingham  declared.75  Such,  however,  is  no 
longer  the  law.  In  no  case  can  oral  evidence,  or  any  evidence  dehors 
the  will,  be  admitted  to  vary  or  control  the  terms  thereof,  though 
oral  evidence  may  be  resorted  to,  to  explain  a  latent  ambiguity.  It 
is  only  when  a  mistake  is  apparent  on  the  face  of  the  will  itself  that 
equity  will  interfere.76 

Other  Instances  Where  Relief  has  been  Given. 

In  earlier  times,  the  commonest  cases  in  which  equitable  inter- 
ference for  mistakes  of  expression  was  invoked  related  to  the  reforma- 
tion of  marriage  settlements.  In  these  cases  there  was  generally  a 
discrepancy  between  the  preliminary  articles  and  the  settlement 
as  finally  executed.77 

73  Murray  v.  Parker,  19  Beav.  305,  308;  Greer  v.  Caldwell,  14  Ga.  215;  Rog- 
ers v.  Saunders,  16  Me.  92;  Glass  v.  Hulbert,  102  Mass.  34;  Patterson  v. 
Bloomer,  35  Conn.  57;  Walden  v.  Skinner,  101  U.  S.  577,  5S3;  Harding  v. 
Long,  103  N.  C.  1,  9  S.  E.  445. 

7*  Davis  v.  Symonds,  1  Cox,  402,  404;  Fowler  v.  Fowler,  4  De  Gex  &  J.  250; 
Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  102  Mass.  45;  Nevius  v.  Dunlap,  33 
N.  Y.  676;  Marsh  v.  Marsh,  74  Ala.  418;  Maxwell  Land  Grant  Case.  121  U.  S. 
325,  7  Sup.  Ct.  1015;  Hutchinson  v.  Ainsworth,  73  Cal.  458,  15  Pac.  82.  See. 
also,  post,  314,  "Reformation." 

75  Winkfield  v.  Combe  (1679)  2  Ch.  Cas.  16. 

76  Milner  v.  Milner,  1  Ves.  Sr.  106;  Thomson  v.  Thomson,  115  Mo.  56,  21  S. 
W.  1085;   Bingel  v.  Volz,  142  111.  214,  81  N.  E.  13. 

77  Legg  v.  Gold  wire,  1  White  &  T.  Lead.  Cas.  Eq.  17. 

bq  jur.— 9 


GROUNDS  FOB  EQUITABLE  BELIEF.  [Ch.  7 

of  the  most  useful  heads  of  the  jurisdiction  of  equity  in  re- 

lieving  againsl  mistake  and  accident  is  in  interfering  in  aid  of  the 

•imi  of  powers.     The  principles  on  which  it  proceeds  in  these 

have  been  thus  expressed:     "Whenever  a  man,  having  power 

over    mi  estate,  whether  ownership  or  not,  in  discharge  of  moral 

tural  obligations,  shows  an  intention  to  execute  such  power, 

nt  will  operate  upon  the  conscience  of  the  heir  or  other  person 

benefited  by  the  default  to  make  him  perfect  this  intention."  78 

Another  instance  is  found  in  relieving  against  mistakes  in  the  set- 
tlement  of  accounts  and  the  execution  of  releases.79  One  rule  re- 
;ig  releases  is  that  general  words  are  always  limited  to  the  mat- 
ter or  matters  especially  within  the  contemplation  of  the  parties  at 
the  time  when  the  release  was  given;80  but  where  a  release  is  gen- 
eral in  its  terms,  and  there  is  no  limitation,  by  recital  or  otherwise, 
leasor  may  not  prove  an  exception  by  parol.81 

FRAUD. 

84.  Fraud  is  deception  or  circumvention  -which  interferes 
•with  the  legal  rights  of  another.82 

To  give  relief  against  all  kinds  of  fraud  had  from  the  first  been 
one  of  the  objects  of  the  high  court  of  chancery,83  and  its  power  of 

78  Chapman  v.  Gibson,  3  Brown,  Ch.  229. 

"  Millar  v.  Craig,  6  Beav.  433;  Gandy  v.  Macaulay,  31  Ch.  Div.  1;  Stuart  v. 
Sears,  110  Mass.  143;  Russell  v.  Presbyterian  Church,  65  Pa.  St.  9. 

so  London  &  S.  W.  R.  Co.  v.  Blackmore,  L.  R.  4  H.  L.  610,  625;   Turner  v. 
Turner,  14  Ch.  Div.  829. 
si  Kirchner  v.  New  Home  S.  M.  Co.,  135  N.  Y.  182,  31  N.  E.  1104. 

lith,  Prin.  Eq.  p.  153;  M.  M.  Bigelow,  in  Law  Quarterly  Review,  Octobei, 
1887.  "Fraud,  in  the  contemplation  of  equity,  may  be  said  to  include  properly 
all  acts,  omissions,  or  concealment  which  involve  a  breach  of  equitable  duty, 
trust,  or  confidence  justly  reposed,  and  are  injurious  to  another;  or  by  which 
an  undue  and  unconscientious  advantage  is  taken  of  another."  1  Fonbl.  Eq. 
bk.  1.  c.  11,  §  5;  1  Story,  Eq.  Jur.  §  187;  Kerr,  Fraud  &  M.  p.  42;  2  Pom.  Eq. 
Jur.  §  "-7.",. 

Lord  Coke's  time  there  was  a  doggerel  rhyme  in  vogue,  expressing  the 
;  view  on  the  subject: 

"Three  things  are  judged  in  court  of  conscience: 
Covin,  accident,  and  breach  of  confidence.  " 
Haynes'  Eq.  p.  7i. 


Ch.  7]  FRAUD.  131 

searching  the  conscience  of  defendant  and  of  decreeing  a  specific 
restitution  of  property,  in  place  of  mere  damages  ascertained  by  the 
rough  assessment  of  a  jury,  gave  to  the  relief  it  offered  a  peculiarly 
beneficial  character.  In  addition  to  this,  the  term  "fraud"  is  used 
in  a  more  comprehensive  sense  in  courts  of  equity  than  in  courts  of 
law.  Equity  will  not  only  relieve  against  actual  deception,  but  it 
will  extend  its  interference  to  all  cases  of  unfair  dealing,  and  pre- 
vent the  dishonest  circumvention  of  one  person  by  another. 

Courts  of  equity  have  always  declined  to  hamper  themselves  with 
any  definition  which  will  indicate  the  various  forms  in  which  fraud 
may  present  itself.  "Fraud  is  infinite;  and  were  a  court  of  equity 
once  to  lay  down  rules  how  far  they  would  go,  and  no  further,  in 
extending  their  relief  against  it,  or  to  define  strictly  the  species 
or  evidence  of  it,  the  jurisdiction  would  be  cramped  and  perpetually 
eluded  by  new  schemes  which  the  fertility  of  man's  invention  would 
contrive." 84 

Nevertheless,  the  meaning  attached  in  equity  to  the  term  "fraud" 
is  sufficiently  indicated  in  the  above  black-letter  definition.  While 
fraud  primarily  imports  falsehood  or  deception,  the  term,  as  used 
in  equity,  covers  transactions  in  which  there  is  no  falsehood,  either 
express  or  implied.  For  instance,  equity  will  relieve  against  a  con- 
veyance made  with  intent  to  defeat  the  grantor's  creditors,  or  against 
an  unconscionable  bargain  secured  by  taking  undue  advantage  of  the 
necessities  of  another.  In  neither  of  these  cases  does  falsehood  or  de- 
ception operate  on  the  mind  of  the  injured  party.  He  is  merely 
tricked  or  circumvented  out  of  his  rights.  It  should  also  be  borne 
in  mind  that  courts  of  equity  do  not  deal  with  merely  abstract  rights, 
and  that,  no  matter  how  shocking  to  the  moral  sense  a  transaction 
may  be,  equity  will  not  interfere  unless  there  is  an  infringement 
of  a  right  recognized  by  the  municipal  law.85 

The  various  classes  of  cases  in  which  relief  has  been  afforded 
against  fraud  will  next  be  considered. 

s*  Lord  Hardwicke,  quoted  in  Parkes'  Hist  Ch.  p.  508;   Mortlock  v.  Buller, 
10  Ves.  292.  306. 
ss  See  ante,  1,  2. 


182  GROUNDS   FOR    EQUITABLE    BELIEF.  £Cll     7 


SAME— CLASSIFICATION  OF  FRAUD. 

85.  The  different  species  of  fraud  may  be  classified  as 
follows: 

(I)  Actual  fraud. 

(a)  Arising  from  -wrongful  acts. 

(b)  Arising  from  wrongful  omissions. 

(II)  Inequitable  and  unconscientious  transactions. 

(a)  Fraud  presumed  from  nature  of  the  transac- 

tions. 

(b)  Fraud  presumed  from  position  or  condition 

of  the  parties. 

(1)  Contracts  with    persons   under   duress, 

lunatics,  imbeciles,  etc. 

(2)  Contracts  between  persons  in  fiduciary 

relations. 

(3)  Gifts  between  parties  in  fiduciary  rela- 

tions. 
(Ill)  Frauds  on  rights  of  third  persons. 

(a)  Composition  with  creditors. 

(b)  Fraudulent  conveyances. 

(c)  Frauds  on  marital  rights. 

(d)  Frauds  on  powers. 

In  the  leading  case  of  Earl  of  Chesterfield  v.  Janssen,86  Lord  Hard- 
wicke  classified  the  different  species  of  fraud  which  will  be  relieved 
against  in  equity.  His  classification  has  been  adopted  by  nearly  all 
subsequent  judges  and  text  writers,  and  forms  the  basis  for  that 
giveo  above.87     It  will  be  observed  that  the  term  "constructive  fraud" 

86  2  Yes.  Sr.  125;   1  White  &  T.  Lead.  Cas.  Eq.  (4th  Am.  Ed.)  773. 

8T  Lord  Hardwicke  said:  "This  court  has  an  undoubted  jurisdiction  to  relieve 
against  every  species  of  fraud.  First,  then,  fraud,  which  is  dolus  malus,  may 
be  actual,  arising  from  facts  and  circumstances  of  imposition,  which  is  the 
plainest  case.  Secondly,  it  may  be  appan  nt  from  the  intrinsic  nature  and  sub- 
ject of  the  bargain  itself,  such  as  no  man  in  his  senses  and  not  under  delusion 
would  make,  on  the  one  hand,  and  as  no  honest  and  fair  man  would  accept,  on 
the  other,  which  are  inequitable  and  unconscientious  bargains.  A  third  kind 
of  fraud  is  that  which  may  be  presumed  from  the  circumstances  and  condi- 


<Jh.  7]  FRAUD.  133 

is  not  used  in  the  foregoing  classification,  though  the  subjects  class- 
ified under  the  second  and  third  subdivisions  are  generally  so  termed 
by  text  writers.  By  constructive  fraud  is  meant  conduct  by  one  or 
both  parties,  not  actually  dishonest  or  fraudulent,  but  so  like  it 
that,  for  reasons  of  public  policy,  it  would  be  unsafe  to  attempt  to 
draw  a  judicial  distinction  between  them.  In  other  words,  a  court 
of  equity  practically  says  to  the  parties:  "If  your  conduct  was 
uot  in  reality  dishonest  and  fraudulent,  it  might  just  as  well  have 
been  so." 88 

ACTUAL  FRAUD. 

86.  Actual  fraud  is  fraud  evidenced  by  some  positively- 
dishonest  act  or  omission.  As  already  stated,  it  may  con- 
sist in  either: 

(a)  Wrongful  acts  or  misrepresentations. 

(b)  Wrongful  omissions. 

SAME— WRONGFUL  ACTS  OR  MISREPRESENTATIONS. 

87.  To  constitute  a  misrepresentation  justifying  the 
rescission  of  a  contract  in  equity — 

ttons  of  the  parties  contracting;  and  this  goes  further  than  the  rule  of  law, 
which  is  that  it  must  be  proved,  not  presumed;  but  it  is  wisely  established  in  this 
court  to  prevent  taking  surreptitious  advantage  of  the  weakness  or  necessity 
of  another,  which  knowingly  to  do  is  equally  against  conscience  as  to  take  ad- 
vantage of  his  ignorance.  A  fourth  kind  of  fraud  may  be  collected  or  inferred, 
in  the  consideration  of  this  court,  from  the  nature  and  circumstances  of  the 
transaction,  as  being  an  imposition  and  deceit  on  other  persons  not  parties  to 
the  fraudulent  agreement.  *  *  *  The  last  head  of  fraud  on  which  there  has 
been  relief  is  that  which  infects  catching  bargains  with  heirs,  reversioners,  or 
expectants,  in  the  life  of  their  fathers.  These  have  generally  been  mixed 
cases,  compounded  of  all  or  several  species  of  fraud;  there  being  sometimes 
proof  of  actual  fraud,  which  is  always  decisive." 

Writers  on  equity  jurisprudence  have  treated  under  fraud  contracts  having 
for  their  object  the  violation  of  some  public  policy  or  express  statutes.  Such 
cases  have  no  connection  with  fraud.  1  Bigelow,  Frauds,  9.  As  that  subject  is 
fully  covered  in  one  of  the  books  of  this  series  (Clark,  Cont.  374  et  seq.),  and  as 
there  is  no  distinction  between  the  rules  of  law  and  those  of  equity  on  this 
subject,  the  matter  has  not  been  touched  on  here. 

ss  Smith,  Prin.  Eq.  155. 


GROUNDS    FOR    EQUITABLE    RELIEF.  [Ch.  7 

(a)  The  representation  must  have  been  contrary  to  the 

fact. 

(b)  The   party  making   it   must   have  known  it  to  be 

contrary  to  the  fact. 

(c)  It  must  be  as  to  some  material  fact  constituting  an 

inducement   or  motive   to  the  act  or  omission  of 
the  other  party.89 

These  rases  of  misrepresentation  or  suggestio  falsi  are  the  largest 
in  which  courts  of  justice  are  called  on  to  give  relief  against 
fraud. 
Representation  must  be  Contrary  to  Fact. 

The  most  essential  element  of  a  misrepresentation  is,  of  course,  its 
falsity.  This  element  is  not  susceptible  of  any  exception  or  limita- 
tion, and  no  citation  of  special  authorities  is  necessary  to  sustain  the 
proposition. 

In  the  next  place,  the  representation  must  be  of  a  fact,  as  dis- 
tinguished from  a  mere  expression  of  opinion.90  No  certain  rule 
can,  however,  be  laid  down  by  which  to  determine  whether  a  false 
representation  constitutes  matter  of  opinion  or  matter  of  fact.  Each 
case  must,  in  large  measure,  be  adjudged  on  its  own  circumstances. 
In  reaching  its  conclusion,  the  court  will  take  into  consideration  the 
situation  and  intelligence  of  the  parties,  the  general  information  and 
experience  of  the  people  as  to  the  nature  and  use  of  the  property, 
the  habits  and  methods  of  those  dealing  with  it,  and  then  determine 
upon  all  the  circumstances  of  the  case  whether  the  representations 
ought  to  have  been  understood  as  affirmations  of  fact  or  as  matter 
of  opinion  or  judgment.01  Promises  to  perform  certain  acts  in 
the  future,  and  statements  as  to  intention,  are  generally  classed  as 
expressions  of  opinion.92     So  with  puffing  or  commendation  com- 

80  See  Attwood  v.  Small,  G  Clark  &  F.  232,  244;  Southern  Development  Co.  v. 
Silva,  V27>  U.  S.  247.  S  Sup.  Ct.  SSI. 

so  Page  v.  Bent,  2  Mete.  (Mass.)  371,  374;  Southern  Development  Co.  v.  Silva, 
125  U.  S.  247,  8  Sup.  Ct.  SSI;  Akin  v.  Kellogg,  119  N.  Y.  441,  449,  23  N.  E. 
Conant  v.  National  State  Bank,  121  Ind.  323,  22  N.  E.  250;  Holton  v. 
Noble,  S3  Cal.  7,  23  Pac.  58. 

oi  Reeves  v.  Corning,  51  Fed.  774,  7S0. 

02  Birmingham  Warehouse  &  Elevator  Co.  v.  Ely-ton  Land  Co.,  93  Ala.  549, 
U  South.  235;   Adams  v.  Schiffer,  11  Colo.  15,  17  Pac.  21;   Knowlton  v.  Keenan, 


Ch.  7]  FRAUD.  135 

monly  resorted  to  by  vendors,03  including  statements  as  to  the  value 
of  property  sold,04  when  not  made  as  a  positive  affirmation  of  fact; 95 
but  a  statement  as  to  the  actual  cost  of  the  property  to  the  vendor 
is  regarded  as  a  representation  of  fact.96 

Knowledge  of  Falsity. 

The  second  rule  is  subject  to  some  important  qualifications.  Since 
actual  fraud  involves  positive  dishonesty,  it  follows  that  the  party 
making  the  misrepresentation  must  have  (1)  knowledge  of  its  falsi- 
ty;9T  (2)  or  must  make  it  recklessly  without  any  knowledge  or  belief 
on  the  subject;  °8  (3)  or,  believing  his  representation  to  be  true,  must 
be  guilty  of  negligence,  and  thus  ignorant  of  that  which  he  would 
have  known  if  he  had  rightly  discharged  his  duty.99  A  man  who 
makes  a  representation  which  he  honestly  and  on  reasonable  grounds 

146  Mass.  86,  15  N.  E.  127;  Gray  v.  Suspension  Car  Truck  Manuf'g  Co.,  127 
111.  187,  19  N.  E.  874.  Promise  to  make  new  invention  is  expression  of  opin- 
ion.    Norfolk  &  N.  B.  Hosiery  Co.  v.  Arnold,  49  N.  J.  Eq.  390,  23  Atl.  514. 

»3  Fenton  y.  Browne,  14  Ves.  144;   Reynolds  v.  Palmer,  21  Fed.  433. 

»4  Ellis  v.  Andrews,  56  N.  Y.  85;  Byrne  v.  Stewart,  124  Pa.  St.  450,  17  Atl. 
19;  Suessenguth  v.  Bingenheimer,  40  Wis.  370;  Gordon  v.  Butler,  105  U.  S. 
553;  Dillman  v.  Nadlehoffer,  119  111.  507,  7  N.  E.  SS;  Rendell  v.  Scott,  70  Cal. 
514,  11  Pac.  779. 

95  Deliberate  statement  of  value  by  a  person  having  full  knowledge,  made 
in  response  to  an  inquiry  for  the  guidance  of  the  other  party,  and  acted  on  in 
reliance  on  its  good  faith  and  honesty,  is  a  representation  of  fact.  Haygarth 
v.  Wearing,  L.  R.  12  Eq.  320,  327,  32S;  Jordan  v.  Volkenning,  72  N.  Y.  300, 
300;  Morgan  v.  Dinges,  23  Neb.  271,  36  N.  W.  544;  Perkins  v.  Partridge,  30  N. 
J.  Eq.  82. 

96  Fairchild  v.  McMahon,  139  N.  Y.  290,  34  N.  E.  779;  Sandford  v.  Handy, 
23  Wend.  260;  Van  Epps  v.  Harrison,  5  Hill,  65.  Contra,  Cooper  v.  Lover- 
ing,  106  Mass.  77,  79;  Tuck  v.  Downing,  76  111.  71;  Holbrook  v.  Connor,  60 
Me.  578. 

97  Patch  v.  Ward,  3  Ch.  App.  203,  207;  Smith  v.  Richards,  13  Pet.  26,  36; 
Frenzel  v.  Miller,  37  Ind.  1. 

98  Cooper  v.  Schlesinger,  111  U.  S.  148  4  Sup.  Ct.  360;  Hexter  v.  Bast,  125 
Pa.  St.  52,  72,  17  Atl.  252;  Bullitt  v.  Farrar,  42  Minn.  8,  43  N.  W.  566;  McKin- 
non  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800;  Stimson  v.  Helps,  9  Colo.  35,  10  Pac. 
290;   Stone  v.  Denny,  4  Mete.  (Mass.)  151;  Marsh  v.  Falker,  40  N.  Y.  502. 

99  Hart  v.  Swaine,  7  Ch.  Div.  42,  46;  Rawlins  v.  Wickham,  3  De  Gex  &  J. 
304;  Rorer  Iron  Co.  v.  Trout,  83  Va.  397,  2  S.  E.  713;  Converse  v.  Blumrich. 
14  Mich.  109;  Frenzel  v.  Miller,  37  Ind.  1;  Chatham  Furnace  Co.  v.  Moffatt, 
147  Mass.  403,  18  N.  E.  168. 


13(3  GROUNDS    FOR    1  QUIT  ABLE    RELIEF.  [C  h.   7 

believes  to  be  true,  or  believes  himself  entitled  to  assert,  is  not,  in- 
dependently of  a  duly  cast  on  him  to  know  the  truth,  bound  in  equity 
to  make  good  what  he  has  so  represented,  if  it  turns  out  to  be  un- 
true.1"0 1  lew  ever,  such  a  misrepresentation,  honestly  made,  may 
entitle  the  parties  to  relief  on  the  ground  of  mistake,  under  the 
principles  heretofore  discussed.101 
Materiality  of  Misrepresentation  and  Reliance  Thereon. 

A  misrepresentation,  to  be  material,  must  be  one  necessarily  in- 
fluencing and  inducing  the  transaction,  and  affecting  and  going  to 
ii  s  wit  essence  and  substance.102  Misrepresentations  extending  only 
to  some  unimportant  detail,  or  to  something  collateral  to  the  con- 
tract, are  not  material.103  And  it  follows  from  this  rule  that  a  mis- 
representation is  of  no  effect  unless  it  has  in  fact  misled  the  com- 
plaining party.  If  he  knows  it  to  be  false,  and  has  not  relied  on  it, 
it  cannot  have  influenced  his  conduct104  But  no  obligation  rests 
on  him  to  investigate  or  verify  the  representations,  to  the  truth  of 
which  the  other  party  to  the  contract,  with  full  means  of  knowledge, 
has  deliberately  pledged  his  faith.105  In  a  court  of  equity  no  man 
can  complain  that  another  has  too  implicitly  relied  on  the  truth  of 
what  he  himself  has  stated.106  However,  one  who  has  the  means  of 
knowledge,  uses  them,  makes  inquiries,  and  eventually  relies  on  his 
own  judgment,  cannot  afterwards  complain  of  the  misrepresentation, 

ioo  Kerr,  Fraud  &  M.  p.  60;  Merewether  v.  Shaw,  2  Cox,  124. 

ioi  Ante,  122  et  seq.    See,  also,  Smith  v.  Bricker,  8G  Iowa,  285,  53  N.  W.  250. 

102  Kerr,  Fraud  &  M.  p.  74;  Cotton  v.  Stanford,  82  Cal.  351,  23  Pac.  16;  Pow- 
ell v.  Adams,  98  Mo.  598,  12  S.  W.  295;  Smith  v.  Kay,  7  H.  L.  Cas.  750,  755. 

103  Percival  v.  Harger,  40  Iowa,  286;   Winston  v.  Gwathney,  8  B.  Mom  19. 

104  Pennybacker  v.  Laidley,  33  W.  Va.  624,  11  S.  E.  39;  Pearce  v.  Buell,  22 
Or.  29,  29  Pac.  78;  Nelson  v.  Stocker,  4  De  Gex  &  J.  458. 

ioo  Kramer  v.  Williamson,  135  Ind.  655,  35  N.  E.  3S8;  Mead  v.  Bunn,  32  N. 
V.  275;  Erickson  v.  Fisher,  51  Minn.  300,  53  N.  W.  638;  Morehead  v.  Fades, 
3  Bush,  121. 

io6  Redgrave  v.  Hurd,  20  Ch.  Div.  1.  In  Sutton  v.  Morgan,  158  Pa.  St.  204, 
27  Atl.  S94,  it  was  said,  speaking  of  the  failure  of  purchasers  of  land  to  inves- 
tigate respecting  misrepresentations  made  by  the  vendors:  "They  fell  easily 
into  the  trap  which  was  set  with  some  skill  and  some  effrontery  for  them; 
but  their  neglect  or  want  of  prudence  cannot  justify  the  falsehood  or  fraud 
of  those  who  practice  upon  their  credulity.  The  doctrine  of  contributory  neg- 
ligence cannot  be  invoked  by  defendants  to  save  them  from  liability  for  mis- 
leading their  victims  " 


Ch.  7]  FRAUD.  137 

nor  claim  that  he  did  not  learn  the  truth,  and  was  in  fact  misled.107 
And,  if  a  misrepresentation  is  capable  of  several  interpretations,  it  is 
for  the  plaintiff  to  show  on  which  he  relied.  The  court  will  not  as- 
sume that  he  has  been  deceived  merely  because  the  circumstances 
are  such  that  he  might  well  have  been.108 

In  addition  to  the  foregoing  elements,  injury  must  result  as  the 
immediate,  and  not  the  remote,  consequence  of  the  misrepresenta- 
tion.109 

SAME— WRONGFUL    OMISSIONS. 

88.  Mere  silence  will  not  amount  to  fraud,  unless  the 
fact  suppressed  is  material,  and  is  one  -which  the  party- 
concealing  it  is  under  some  legal  or  equitable  duty  to  dis- 
close. 

At  the  outset,  it  should  be  borne  in  mind  that  the  question  now 
to  be  discussed  relates  only  to  passive,  though  wrongful,  concealment, 
as  distinguished  from  cases  of  "active  concealment,"  where  a  person 
uses  some  contrivance  to  hide  a  defect  in  something  offered  for  sale. 
These  latter  cases  are  really  cases  of  wrongful  acts,  and  fall  within 
our  first  division  of  actual  fraud.  Indeed,  a  misrepresentation  need 
not  be  made  by  language,  spoken  or  written,  but  conduct  calculated 
to  convey  a  false  impression  is  sufficient.110  In  cases  of  mere  omis- 
sion or  silence,  as  in  cases  of  wrongful  acts,  the  fact  concealed  must 
be  material,  and  must  be  instrumental  in  bringing  about  the  con- 
tract. The  only  point  of  difference  between  wrongful  acts  and 
omissions  is,  therefore,  as  to  the  obligation  to  make  disclosure;  and 
this  question  will  be  now  considered. 

Where  parties  deal  at  arms'  length,  and  there  is  no  confidential 
or  fiduciary  relation  between  them,  either  of  them  may  remain  silent, 
and  avail  himself  of  his  superior  knowledge  as  to  facts  and  circum- 
stances equally  open  to  the  observation  of  both,  or  equally  within  the 

107  Colton  v.  Stanford,  82  Cal.  352,  23  Pac.  1G;  Southern  Development  Co.  v. 
Silva,  125  U.  S.  247,  8  Sup.  Ct.  881;  Billings  v.  Aspen  Mining  &  Smelting  Co., 
2  C.  C.  A.  252,  51  Fed.  338;  Jennings  v.  Broughton,  5  De  Gex,  M.  &  G.  126; 
Dyer  v.  Hargrave,  10  Ves.  505. 

los  Smith  v.  Chadwick,  9  App.  Cas.  187. 

io9Holton  v.  Noble,  83  Cal.  7,  23  Pac.  58;  Wells  v.  Waterhouse,  22  Me.  131; 
Branham  v.  Record,  42  Ind.  181;   Barry  v.  Croskey,  2  Johns.  &  H.  1. 

no  Lovell  v.  Hicks,  2  Young  &  C.  Exch.  46;  Denny  v.  Hancock,  6  Ch.  App.  1. 


GROUNDS    FOB    EQUITABLE   BELIEF.  [CJl.  7 

reach  of  their  ordinary  diligence,  and  is  under  no  obligation,  either 
at  law  or  in  equity,  to  draw  the  attention  of  the  other  to  circuni- 
stances  affecting  the  value  of  the  property  in  question,  though  he 
may  know  him  to  be  ignorant  of  them.111  Thus,  a  purchaser  of  land 
is  not  required  to  communicate  his  knowledge  of  something  which 
gives  ii  an  exceptional  value,  such  as  a  mineral  deposit  under  it;112 
nor  need  the  vendor  communicate  his  information  respecting  defects 
rendering  it  less  valuable  than  the  purchaser  supposes  it  to  be.113 
But  if  a  vendor  conceals  a  material  fact,  as  to  which,  from  the  nature 
nf  the  ease,  confidence  is  reposed  in  him,  the  transaction  may  be 
set  aside  on  the  mere  ground  of  his  silence.114  A  distinction  has  also 
been  made  between  patent  and  latent  defects.  A  vendor  is  under 
no  obligation  to  disclose  a  defect  which  is  patent,  or  such  as  the 
buyer,  having  an  opportunity  to  inspect,  can  discover  by  the  exercise 
of  ordinary  vigilance;1"  but  he  should  disclose  latent  defects,  or 
such  as  the  buyer  has  no  means,  or  not  equal  means,  of  ascertain- 
ing.118 

ids  of  a  Fiduciary  Nature. 
The  foregoing  rules  are  generally  applicable,  but  certain  contracts, 
from  their  very  nature,  are  considered  to  be  essentially  fiduciary  in 

in  Dambmann  v.  Schulting,  75  N.  Y.  55;  (Ira ham  v.  Meyer,  99  N.  Y.  Gil,  1  N. 
E.  143;  Pennybacker  v.  Laidley,  3.°.  W.  Ya.  624,  11  S.  E.  39;  Cleaveland  v. 
Richardson,  132  I".  S.  318,  329,  10  Sup.  Ct.  100;  Goninan  v.  Stephenson,  24  Wis. 
75;   Wilde  v.  Gibson,  1  II.  L.  Cas.  605. 

us  Fox  v.  Mackreth,  2  Cox,  320,  2  Brown,  Ch.  400,  420;  Harris  v.  Tyson,  24 
Pa.  St.  347;  Williams  v.  Spurr,  24  Mich.  335.  Failure  of  a  purchaser  of  oil 
lands  to  disclose  the  output  of  a  well  on  adjoining  land  operated  by  himself 
is  not  such  a  fraud  as  entitles  the  vendor  to  rescission.  Neill  v.  Shamburg, 
15S  Pa.  St  2G3,  27  Atl.  992. 

us  Haywood  v.  <',,),< .  25  Beav.  140;  People's  Bank  v.  Bogart,  81  N.  Y.  101; 
Laidlaw  v.  Or.Lran,  2  Wheat.  178.  A  sale  of  land  for  an  extravagant  price  will 
not  be  rescinded  at  the  suit  of  the  purchaser  who  invested  his  money  on  the 
faith  of  his  belief  in  the  power  of  a  third  person  to  locate  mineral  deposits, 
when  the  vendor  did  nothing  to  create  or  strengthen  the  false  opinions  on 
which  the  purchaser  acted.    I. aw  v.  Grant,  37  Wis.  548. 

i"  Edwards  v.  McLeay,  2  Swanst.  287;  Ellard  v.  Llandaff,  1  Ball  &  B.  241; 
Howard  v.  Gould,  28  Yt.  525;   Brown  v.  Montgomery,  20  N.  Y.  287. 

us  Leake,  Cout  361 ;  Brown  v.  Gray,  G  Jones  (N.  C.)  103. 

no  Turner  v.  Huggins,  14  Ark.  21;  Lunn  v.  Shermer,  93  N.  C.  164;  George 
v.  Taylor,  55  Tex.  'j7;   Trout  v.  Roberts,  '61  Ala.  427. 


Ch.  7]  FRAUD.  139 

their  character,  and  full  disclosure  is  required.  Among  these  is 
the  contract  of  insurance;  and  it  is  held  that  the  intentional  conceal- 
ment by  the  insured  of  a  material  fact  vitiates  the  policy.117  In  the 
contract  of  suretyship,  also,  the  duty  of  making  disclosure  is  insisted 
on;118  and  likewise  in  family  settlements.119 

SAME— RIGHTS   AND   DUTIES    OF   DEFRAUDED   PARTY. 

89.  Fraud  does  not  render  a  transaction  void,  but  only- 
voidable.  If  the  defrauded  party  elects  to  rescind,  he 
must  act  promptly  after  discovering  the  fraud;  and  he 
cannot  repudiate  the  transaction  in  part,  and  adopt  it  as 
far  as  it  is  beneficial.120 

Since  fraud  renders  a  transaction,  not  void,  but  only  voidable, 
several  courses  are  open  to  the  defrauded  party:  (1)  He  may  affirm 
the  transaction,  and  sue  at  law  to  recover  the  damages  sustained  by 
reason  of  the  fraud.121  (2)  He  may  absolutely  rescind  the  transac- 
tion, and  sue  at  law  to  recover  the  property  he  parted  with.  This 
action  proceeds  on  the  theory  that  the  transaction  has  already  been 
rescinded,  and  therefore,  before  plaintiff  can  maintain  it,  he  must 
have  returned  or  tendered  all  that  he  received  by  virtue  of  the 
transaction.122  (3)  He  may  sue  in,  equity  for  a  rescission.  This 
action  does  not  proceed  on  the  theory  that  plaintiff  has  already  re- 
scinded, but  it  is  for  a  rescission;  and  therefore  it  is  sufficient  for 
plaintiff  to  offer  in  his  complaint  to  restore  to  defendant  what  he  has 

H7  Green  v.  Merchants'  Ins.  Co.,  10  Pick.  (Mass.)  402;  McLanahan  v.  Univer- 
sal Ins.  Co.,  1  Pet.  170,  185;  Ionides  v.  Pender,  L.  R.  9  Q.  B.  531,  537;  Thom- 
son v.  Weerns,  9  App.  Cas.  671. 

us  Wythes  v.  Labouchere,  5  De  Gex  &  J.  595;  Howe  Mach.  Co.  v.  Fairing- 
ton,  82  N.  Y.  121. 

us  Gordon  v.  Gordon,  3  Swanst  400,  475,  477;  Pane  v.  Fane,  L.  R.  20  Eq. 
698. 

120  Oakes  v.  Turquand,  L.  R.  2  H.  L.  345,  346;  Lindsley  v.  Ferguson,  49  N. 
Y.  623;  Negley  v.  Lindsay,  67  Pa.  St.  217. 

121  Krumm  v.  Beach,  96  N.  Y.  39S,  406;  Urquhart  v.  Macpherson,  App.  Cas. 
831. 

122  Gould  v.  Cayuga  Co.  Nat.  Bank,  86  N.  Y.  75;  Vail  v.  Reynolds,  118  N.  Y. 
297,  302,  23  N.  E.  301;  Thayer  v.  Turner,  8  Mete.  (Mass.)  550. 


MO  GROUNDS    FOR    EQUITABLE    RELIEF.  [Ch.   7 

received,  and  the  rights  of  the  parties  can  be  fully  regulated  and 
protected  by  the  judgment  to  be  entered.123 

In  all  eases  plaintiff  must  act  with  reasonable  diligence  after  be- 
coming  aware  of  the  fraud;1"  but  the  question  as  to  what  is  reason- 
able  diligence  depends  on  the  facts  of  each  particular  case.125  How- 
ever, the  duty  to  bring  action  arises  only  on  discovery  of  the  fraud; 
and  hence  the  statute  of  limitations  does  not  begin  to  run  until  the 
fraud  is  discovered,  or  might  have  beeu  with  the  exercise  of  reason- 
able diligence.128 

Another  result  of  the  merely  voidable  nature  of  transactions  taint- 
ed with  fraud  is  that  complainant  will  be  given  no  relief  unless  he 
comes  with  clean  hands.  If  complainant  has  himself  participated  in 
the  scheme  to  defraud,  and  is  in  pari  delicto  with  defendant,  equity 
will  not  interfere  in  his  favor,  but  will  leave  the  parties  where  it 
finds  them.127 

Since  a  fraudulent  transaction  is  merely  voidable,  it  also  follows 
that  rescission  cannot  be  decreed  as  against  a  bona  fide  purchaser; 
he  acquires  a  good  title  as  against  the  defrauded  party.128  With 
this  exception,  however,  "a  court  of  equity  will  wrest  property  fraud- 
ulently acquired,  not  only  from  the  perpetrator  of  the  fraud,  but,  to 
use  Lord  Cottenham's  language,  from  his  children  and  his  children's 
children,  or,  as  elsewhere  said,  from  any  persons  amongst  whom  he 
may  have  parceled  out  the  fruits  of  his  fraud."  128 

INEQUITABLE    OR   UNCONSCIENTIOUS    TRANSACTION?. 

This  is  necessarily  a  very  wide  and  somewhat  indeterminate  class, 
which  is  scarcely  susceptible  of  systematic  analysis.     A  distinction 

123  Gould  v.  Cayuga  Co.  Nat.  Bank,  86  N.  Y.  75;  Thomas  v.  Beals  (Mass.)  27 
N.  E.  1004;   Nelson  v.  Carlson  (Minn.)  55  N.  W.  S21. 

124  Cainpau  v.  Van  Dyke,  15  Mich.  371;  Brown  v.  Brown  (HI.  Sup.)  32  N. 
E.  500;  Richardson  v.  Walton,  49  Fed.  88S;  Weaver  v.  Carpenter,  42  Iowa, 
345;   Akerly  v.  Vilas,  21  Wis.  88. 

i25Kilbourn  v.  Sunderland,  130  U.  S.  505,  518,  9  Sup.  Ct.  594. 

126  Gibbs  v.  Guild,  9  Q.  B.  Div.  59;  Dodge  v.  Essex  Ins.  Co.,  12  Gray,  G5; 
Brown  v.  Brown,  01  Tex.  45;  Kirby  v.  Railroad  Co.,  120  U.  S.  136,  137,  7  Sup. 
Ct.  430. 

127  See  ante,  40. 

128  Oakcs  v.  Turquand,  L.  R.  2  H.  L.  325.     See,  also,  ante,  — . 

129  Vane  v.  Vane,  8  Ch.  App.  385,  397,  per  James,  L.  J. 


Ch.   7]  FRAUD.  141 

may,  however,  be  drawn  between  those  cases  in  which  the  very  na- 
ture of  the  transaction  gives  rise  to  a  suspicion  of  fraud  and  those 
cases  where  a  presumption  of  fraud  arises  from  the  peculiar  circum- 
stances and  relations  of  the  parties. 

PRESUMPTION    OF    FRAUD    FROM    NATURE    OF    TRANSAC- 
TION. 

90.  Mere  inadequacy  of  consideration,  in  the  absence  of 
other  inequitable  circumstances,  is  no  ground  for  avoiding 
a  transaction  in  equity,  unless  it  is  so  gross  as  to  shock 
the  conscience,  and  amount  to  clear  evidence  of  actual 
fraud. 

No  principle  is  better  settled  than  that  mere  inadequacy  of  price 
does  not  form  a  distinct  ground  of  equitable  relief.130  Courts  of 
equity,  as  well  as  of  law,  act  on  the  ground  that  every  person  who  is 
not,  from  his  peculiar  circumstances  or  condition,  under  disability, 
is  entitled  to  dispose  of  his  property  in  such  manner  and  upon  such 
terms  as  he  may  choose.  There  are  cases,  however,  where  there  is 
no  positive  evidence  of  fraud,  and  yet  the  inequality  of  the  bargain 
is  so  gross  that  the  mind  cannot  resist  the  inference  that  it  was  im- 
properly obtained.  To  have  this  effect,  however,  "there  must  be  an 
inequality  so  strong,  gross,  and  manifest  that  it  must  be  impossible 
to  state  it  to  a  man  of  common  sense  without  producing  an  exclama- 
tion at  the  inequality  of  it." 131  And,  though  the  inadequacy  is  not 
of  this  shocking  character,  yet,  if  it  is  accompanied  by  circumstances 
of  an  inequitable  nature,  such  as  concealment,  oppression,  or  undue 
influence,  on  the  one  hand,  or  old  age,  mental  infirmity,  or  pecuniary 
embarrassment,  on  the  other,  a  presumption  of  fraud  is  raised,  war 
ranting  equitable  relief,  unless  the  party  claiming  the  benefit  suc- 
ceeds in  showing  perfect  good  faith  in  the  transaction.132 

130  parmelee  v.  Cameron,  41  N.  Y.  392;  Butler  v.  Haskell,  4  Dessaus.  Eq. 
651;  Martinez  v.  Moll,  46  Fed.  724;  Harris  v.  Tyson,  24  Pa.  St.  347,  360;  Col- 
lier v.  Brown,  1  Cox,  428. 

131  Lord  Thurlow  in  Gwynne  v.  Heaton,  1  Brown,  Ch.  8;  Matthews  v.  Crock- 
ett's Adm'r,  82  Va,  394;  Hamblin  v.  Bishop,  41  Fed.  74;  Pennybacker  v.  Laid- 
ley,  33  W.  Va.  624,  11  S.  E.  39;  Phillips  v.  Pullen,  45  N.  J.  Eq.  5,  830,  16  Atl. 
9,  and  18  Atl.  849. 

132  Burke  v.  Taylor,  94  Ala.  530,  10  South.  129;  Tracey  v.  Sacket,  1  Ohio  St 
54;   Deane  v.  Rastron,  1  Anst.  64. 


142  GROUNDS    FOli    EQUITABLE    BELIEF.  £Ch.  7 

Catching  Bargains. 

It  remains  to  notice  a  peculiar  class  of  cases,  frequently  arising  in 
England,  but  rarely  with  us,  known  as  catching  bargains  with  heirs, 
doners,  or  expectants.  Fraud  was,  in  these  cases,  commonly 
presumed  from  inadequacy  of  consideration;133  and  such  transac- 
tions were  frequently  set  aside  on  this  ground  alone,  without  proof 
of  any  other  ingredients  of  fraud,  such  as  misrepresentation,  undue 
influence,  etc.134  And  the  fact  that  the  expectant  was  of  a  mature 
>■  well  understood  the  nature  and  extent  of  the  transaction,  was 
immaterial.188  From  the  fact  of  a  person's  selling  such  an  interest 
the  court  presumed  that  he  was  under  pecuniary  pressure,  and  it 
was  not  incumbent  on  him  to  prove  that  it  was  so.  The  onus  was 
on  the  purchaser  to  show  that  the  transaction  was  just  and  reason- 
able.136 Post  obit  bonds,  or  bonds  conditioned  for  pajonent  of  a 
sum  of  money  on  the  death  of  a  person  from  whom  the  obligor  has 
expectations,  are,  on  similar  principles,  regarded  with  suspicion  in 
equity,  and,  if  of  an  unconscionable  character,  will  be  suffered  to 
stand  only  as  security  for  the  actual  sum  lent  thereon,  with  proper 
interest.137 

FRAUD    PRESUMED    FROM    POSITION    OR    CONDITION"     OF 

PARTIES. 

91.  To  simplify  matters,  the  cases  -where  fraud  is  pre- 
sumed from  the  position  or  condition  of  the  parties  may 
be  further  subdivided  as  follows: 

(a)  Contracts  -with  persons  under  mental  disability,  or 

under  duress. 

(b)  Contracts  between   persons   occupying  a  fiduciary 

relation. 

133  Peacock  v.  Evans,  16  Ves.  512. 

134  Curwyn  v.  Miller,  3  P.  Wms.  293,  note;  Earl  of  Aylesford  v.  Morris,  8 
Ch.  App.  484. 

135  Earl  of  Pertmore  v.  Taylor,  4  Sim.  182;  Bromley  v.  Smith,  26  Beav.  644. 

136  Gowland  v.  De  Faria,  17  Ves.  20;  Lord  v.  Jeffkins,  35  Beav.  7,  9.  This 
matter  is  now  regulated  by  statute  in  England.  St.  31  Vict.  c.  4,  provides 
that  "no  purchase  made  bona  fide,  and  without  fraud  or  unfair  dealing,  of  any 
reversionary  interest  in  real  or  personal  estate,  shall  hereafter  be  opened  or  set 
aside  merely  on  ground  of  undervalue." 

137  Curling  v.  Townshend,  1!)  Ves.  62S;   Benyon  v.  Fitch,  35  Beav.  570. 


Ch.  7]  FRAUD.  143 

(c)  Gifts  between  persons  occupying  a  fiduciary  rela- 
tion. 


SAME— CONTRACTS   WITH   PERSONS   UNDER   MENTAL  DIS- 
ABILITY  OR   DURESS. 

92.  The  very  foundation  of  contract  is  consent  or  agree- 
ment. There  can  be  no  true  consent  or  agreement  with- 
out a  capacity  to  understand  the  terms  of  the  agreement, 
and  also  freedom  to  accept  or  to  refuse  the  terms  pro-, 
posed.  Therefore,  if  a  person  induces  another,  who  lacks 
either  this  capacity  or  this  freedom,  to  enter  into  an  ap- 
parent contract,  equity  will  not  recognize  the  transaction, 
however  it  may  be  fenced  by  formal  observances,  but> 
deeming  it  fraudulent,  will  generally  grant  relief  against 
it  at  the  suit  of  the  party  imposed  upon.133 

Insanity. 

On  this  ground  the  contracts  of  idiots,  lunatics,  and  other  persons 
non  compos  mentis  are  generally  deemed  invalid  by  courts  of  equity. 
The  general  rule  in  this  country  is  that  the  contracts  of  a  lunatic, 
made  after  the  fact  of  insanity  has  been  judicially  ascertained,  are 
absolutely  void,  until,  by  permission  of  the  court,  he  is  allowed  to 
resume  control  of  his  property.139  But  contracts  entered  into  by  a 
person  apparently  sane,  before  the  fact  of  insanity  has  been  thus 
established,  are  at  most  only  voidable,  and  will  not  be  set  aside,  when 
the  other  party  has  no  notice  of  the  insanity,  derives  no  inequitable 
advaDtage,  and  the  parties  cannot  be  placed  in  statu  quo.140  The 
reason  for  this  distinction  is  plain.  Insanity  is  one  of  the  most 
mysterious  diseases  to  which  humanity  is  subject.  The  ripest  pro- 
fessional skill  and  the  keenest  observation  sometimes  fail  to  detect 
it  in  its  incipient  stages.     Sound  law  and  good  morals,  therefore, 

"8  Smith,  Prin.  Eq.  p.  167 

139  Hughes  v.  Jones,  11G  N.  Y.  G7,  22  N.  E.  446;  Rannells  v.  Gerner,  SO  Mo. 
474;    Copenrath  v.  Kienhy,  S3  Ind.  18. 

140  Manby  v.  Bewicke,  3  Kay  &  J.  342;  Yauger  v.  Skinner,  14  N.  J.  Eq.  389; 
Gribben  v.  Maxwell,  34  Kan.  8,  7  Pac.  584;  Schaps  v.  Lehner,  54  Minn.  208, 
55  N.  W.  911;  Abbott  v.  Creal,  56  Iowa,  175,  9  N.  W.  115;  Scanlan  v.  Cobb,  85 
I1L  296.    The  same  rule  applies  to  idiots.    Buruham  v.  Kidwell,  113  111.  425. 


Ill  GROUNDS    FOB    EQUITABLE    RELIEF.  [Ch.    i 

alike  forbid  the  rescission  of  a  contract  on  the  ground  of  insanity 
by  one  \\li<»  is  unable  or  unwilling  to  restore  the  property  acquired 
i  hereunder  to  the  other  party,  who  entered  into  it  in  good  faith,  in  en- 
tin-  ignorance  of  the  insanity,  and  without  taking  any  advantage 
by  reason  thereof.141 
Merited  Weakness. 

The  mere  fact  that  a  man  is  of  weak  understanding,  or  is  in  in- 
tellectnal  capacity  below  the  average  of  mankind,  is  not  of  itself 
an  adequate  ground  to  set  aside  the  transaction.142  But  equity  will 
interfere  where  weakness  of  intellect  is  coupled  with  other  circum- 
stances, such  as  inadequacy  of  consideration,  undue  influence,  or 
want  of  advice,  showing  that  the  other  party  has  taken  advantage 
of  the  weakness.143  The  burden  of  proving  fairness  of  dealing  with 
such  people  is  on  him  who  ventures  on  it;  and,  if  he  fails,  any  ad- 
vantage made  thereout  must  be  disgorged.144 

Drunkenness. 

To  render  a  transaction  voidable  for  drunkenness,  it  must  have 
been  such  as  to  have  drowned  reason,  memory,  and  judgment,  and 
impaired  the  mental  faculties  to  such  an  extent  as  to  render  the 
victim  non  compos  mentis.145  Drunkenness  of  this  nature  is  open  to 
the  observation  of  every  one;  and  one  who  deals  with  a  person  so 
intoxicated  is  necessarily  guilty  of  inequitable  conduct.  In  case  of 
slighter  intoxication,  equity  will  refuse  to  interfere,  either  to  en- 
force or  rescind  a  contract,  being  equally  unwilling  to  assist  the 
one  person  who  has  immorally  incapaciated  himself  and  the  other 
who  has  immorally  taken  advantage  of  the  incapacity.146    But,  if 

141  Lancaster  Co.  Nat.  Bank  v.  Moore,  78  Pa.  St.  407,  414. 

i«  Ball  v.  Mannin,  3  Bligh  (N.  S.)  1;  Harrison  v,  Guest,  6  De  Gex,  M.  &  G. 
428,  8  II.  L.  Cas.  481;  Thomas  v.  Sheppard,  2  McCord,  Eq.  36;  Burt  v.  Quisen- 
berry.  132  111.  385.  24  N.  E.  622. 

i«  Boyse  v.  Rossborough,  6  H.  L.  Cas.  2;  Tracey  v.  Sacket,  1  Ohio  St.  54; 
Williams  v.  Williams,  63  Md.  371;  Kelly  v.  Smith,  73  Wis.  191,  41  N.  W.  69; 
Allore  v.  Jewell,  94  U.  S.  506. 

m  Longmate  v.  Ledger,  2  Gift*.  157,  164;  Cowee  v.  Cornell,  75  N.  Y.  91,  99, 
100;  Highberger  v.  Stiffler,  21  Md.  338;  Wilkinson  v.  Sherman,  45  N.  J.  Eq. 
121,  IS  Atl.  228;  Gates  v.  Cornett,  72  Mich.  420,  40  N.  W.  740. 

i«  Bates  v.  Ball,  72  111.  108;  Loftus  v.  Maloney,  89  Va.  576,  16  S.  E.  749; 
Crane  v.  Conklin,  1  N.  J.  Eq.  346. 

no  Cook  v.  Clayworth,  18  Ves.  12;    Johnson  v.  Medlicott,  3  P.  Wms.  130. 


Ch.  7]  FRAUD.  145 

one  person  has  designedly  contrived  to  draw  another  into  intoxica- 
tion for  the  purpose  of  imposing  on  him  while  in  that  state,  equity 
will  interfere  to  prevent  the  enjoyment  of  the  advantage  thus  fraudu- 
lently conceived.147 

Duress  and  Undue  Influence. 

In  the  foregoing  cases  the  absence  of  capacity  to  understand  the 
proposal  was  the  chief  ground  of  interference.  The  absence  of  free- 
dom to  accept  or  reject  the  proposal  is  of  like  effect.  Obligations 
entered  into  under  duress  have  always  been  unenforceable  at  law; 
but  equity  goes  much  further,  and  interferes,  wherever  confidence  is 
reposed  and  betrayed,  to  set  aside  the  obligation  or  conveyance  ob- 
tained by  unfair  advantage.  To  warrant  equitable  interference,  how- 
ever, the  undue  influence  must  have  been  of  such  a  nature  as  to  de- 
prive the  complainant  of  his  free  agency,  and  thus  to  render  his  act 
more  the  offspring  of  the  will  of  another  than  of  his  own  will.148 

SAME— CONTRACTS  BETWEEN  PERSONS  IN    FIDUCIARY 

RELATION. 

93.  Whenever  two  persons  stand  in  such  relation  that, 
■while  it  continues,  confidence  is  necessarily  reposed  by- 
one,  and  the  influence  which  naturally  grows  out  of  that 
confidence  is  possessed  by  the  other,  and  this  confidence 
is  abused,  or  the  influence  is  exerted  to  obtain  an  advan- 

note;  Shackelton  v.  Sebree,  86  111.  616.  Equity  will  not  permit  the  rescission 
of  a  contract  for  intoxication  by  one  unable  to  restore  the  property  acquired 
thereunder,  since  to  do  so  would  permit  "intoxicated  people  to  acquire  property, 
and  build  up  fortunes  for  themselves,  on  drunken  incapacity  alone."  Youn 
v.  Lamont  (Minn.)  57  N.  W.  478,  4S0. 

"7  Cory  v.  Cory,  1  Ves.  Sr.  19;  Rottenburgh  v.  Fowl  (N.  J.  Ch.)  26  Atl.  338; 
Dunn  v.  Amos.  14  Wis.  106. 

148  Francis  v.  Wilkinson,  147  111.  370,  35  N.  E.  150.  Cases  where  transaction 
was  avoided  for  undue  influence:  Evans  v.  Llewellin,  1  Cox,  333,  340;  Syni 
v.  Howe,  L.  R.  6  Eq.  55;  Leighton  v.  Orr,  44  Iowa,  679;  Aldridge  v.  Aldridge, 
120  N.  Y.  614,  24  N.  E.  1022;  Rau  v.  VonZedlitz,  132  Mass.  164;  Haydock  v. 
Haydock,  33  N.  J.  Eq.  494;  Gay  v.  Witherspoon  (Ky.)  16  S.  W.  96;  Todd  v. 
Grove,  33  Md.  194.  Cases  where  it  was  held  that  no  undue  influence  existed: 
Hollocher  v.  Hollocher,  62  Mo.  267;  Furlong  v.  Sanford,  87  Ya.  506,  12  S.  E. 
1048;  Earle  v.  Norfolk  &  N.  B.  H.  Co.,  36  N.  J.  Eq.  188;  Burt  v.  Quisenberry, 
132  111.  385,  24  N.  E.  622;  Howe  v.  Howe,  99  Mass.  88. 

EQ.JUR. — 10 


M6  GROUNDS    FOR    EQUITABLE    RELIEF.  [Ch.  7 

tage  at  the  expense  of  the  confiding  party,  the  person  so 
availing  himself  of  his  position  will  not  be  permitted  to 
retain  the  advantage,  although  the  transaction  could  not 
have  been  impeached  if  no  such  confidential  relations  had 

existed.1*8 

In  i he  eases  considered  under  the  preceding  subdivision,  fraud  was 
sought  to  be  inferred  by  reason  of  the  incapacity,  total  or  partial, 
of  one  of  the  parties  to  the  contract.  In  the  cases  now  to  be  con- 
aidered,  a  suspicion  of  fraud  arises  from  the  special  relation  between 
the  parties,  such  as  trustee  and  cestui  que  trust,  principal  and 
agent,  etc. 

It  is  a  rule  of  equity  that  no  man  can  be  permitted  to  take  a  ben- 
efit  when  he  has  a  duty  to  perform  which  is  inconsistent  with  his 
acceptance  of  the  benefit.150  This  rule  is  founded  on  considerations 
of  public  policy,  since  the  condition  of  the  parties  would  generally 
render  it  extremely  difficult  to  obtain  positive  evidence  of  the  fair- 
ness of  transactions  which  are  peculiarly  open  to  fraud  and  undue 
influence.  The  policy  of  the  rule  is  to  shut  the  door  against  tempta- 
tion.151 

Trustee  and  Cestui  Que  Trust. 

A  common  application  of  the  rule  is  to  the  case  of  actual  trustees. 
Dealings  by  trustees  with  trust  estates  may  be  divided  into  two 
classes:  (1)  When  the  trustee  contracts  with  himself,  without  the 
intervention  of  the  cestui  que  trust;  and  (2)  when  he  deals  directly 
with  the  cestui  que  trust. 

1.  With  respect  to  the  first  class  of  cases,  there  is  no  rule  of  equity 
more  sacred  than  that  a  trustee  cannot  so  execute  a  trust  as  to  de- 
rive any  benefit  for  himself.152  It  is  accordingly  firmly  settled  that 
a  purchase  of  the  trust  estate  by  the  trustee  is  void  at  the  option 
i >f  1  lie  cestui  que  trust,  though  the  trustee  may  have  given  an  ade- 
quate price  and  gained  no  advantage.153     It  is  entirely  immaterial 

i*9  Tate  v.  Williamson,  2  Ch.  App.  55,  60,  61,  per  Lord  Chelmsford. 

"o  Kobinson  v.  Pett,  3  P.  Wins.  249;   Van  Epps  v.  Van  Epps,  9  Paige,  241. 

lei  Heme  v.  Meeres,  1  Vera.  465. 

152  Forbes  v.  Ross,  2  Cox,  116. 

Pox  v.  Mackreth,  2  Brown,  Ch.  400,  1  White  &  T.  Lead.  Cas.  Eq.  125; 
Dyer  v.  Shurtleff,  112  Mass.  105;    Romaine  v.  Hendrickson,  27  N.  J.  Eq.  162; 


Ch.  7]  FRAUD.  147 

whether  the  sale  be  private  or  at  public  auction,154  or  under  a  judicial 
decree,155  or  whether  the  trustee  purchases  personally  or  through 
an  agent,156  or  whether  he  purchases  for  himself  or  as  agent  for 
some  third  person.157  In  all  these  cases  the  rule  is  inflexible  that 
the  transaction  is  voidable  at  the  option  of  the  cestui  que  trust.  The 
trustee  cannot  be  both  vendor  and  vendee.  He  cannot  represent 
in  himself  two  opposite  and  conflicting  interests.158 

2.  As  to  the  second  class  of  cases,  dealings  between  trustee  and 
cestui  que  trust  respecting  the  trust  estate  are  presumed  to  be  in- 
valid.159 But  there  is  no  imperative  rule  of  law  prohibiting  such 
dealings.  The  transaction  will  be  permitted  to  stand  if  the  trustee 
can  show  that  the  beneficiary  clearly  understood  with  whom  he  was 
dealing,  and  made  no  objection  to  the  transaction,  and  that  the 
trustee  fairly  and  honestly  disclosed  all  he  knew  respecting  the 
property,  gave  a  just  and  fair  price,  and  did  not  surreptitiously  se- 
cure any  advantage  for  himself.160 

Principal  and  Agent. 

Considerations  of  like  nature  apply  to  the  case  of  persons  standing 
in  the  relation  of  principal  and  agent.    A  person  who  is  an  agent 

Munson  v.  Syracuse,  G.  &  C.  R.  Co.,  103  N.  Y.  58,  8  N.  E.  355;  Price  v  .  Thomp- 
son, 84  Ky.  219,  1  S.  W.  40S;  Carrier  v.  Heather,  62  Mich.  441,  29  N.  W.  3S; 
Scott  v.  Sierra  Lumber  Co.,  67  Cal.  71,  7  Pac.  131;  Cushman  v.  Bonfleld  139 
111.  219,  28  N.  E.  937.  Purchase  of  trust  property  by  trustee  at  public  sale  is 
only  voidable,  and  will  be  ratified  unless  the  beneficiary  repudiates  it  within 
reasonable  time.  Hammond  v.  Hopkins,  143  U.  S.  224,  12  Sup.  Ct.  418;  Scott 
v.  Freeland,  7  Smedes  &  M.  409. 

154  Ex  parte  Lacey,  6  Yes.  629;  Ex  parte  James,  8  Ves.  348;  Michoud  v. 
Girod,  4  How.  503. 

155  Cary  v.  Cary,  2  Schoales  &  L.  175;  Feamster  v.  Peamster,  35  W.  Va.  1, 
13  S.  E.  53;  Carter  v.  Burr,  46  N.  J.  Eq.  134,  IS  Atl.  463;  Tracy  v.  Colby,  55 
Cal.  67;  Tracy  v.  Craig,  Id.  91;  Powell  v.  Powell,  80  Ala.  11. 

156  Campbell  v.  Walker,  5  Ves.  678;  Ingle  v.  Richards,  28  Beav.  361;  Hous- 
ton v.  Bryan,  78  Ga.  181,  1  S.  E.  252;  Bassett  v.  Shoemaker,  46  N.  J.  Eq.  538,  20 
Atl.  52. 

157  Ex  parte  Bennett,  10  Ves.  381,  400;  North  Baltimore  Bldg.  Ass'n  v. 
Caldwell,  25  Md.  420. 

158  Wormley  v.  Worcnley,  8  Wheat  421. 

159  Coles  v.  Trecothick,  9  Ves.  234;  Spencer  &  Newbold's  Appeal,  80  Pa.  St. 
317;   Nichols  v.  McCarthy,  53  Conn.  299,  23  Atl.  93. 

160  Barnard  v.  Stone,  159  Mass.  224,  34  N.  E.  272;    Williams  v.  Powell.  66 


J  18  GROUNDS    FOR    EQUITABLE    BELIEF.  [Ch.  7 

for  another  undertakes  a  duty  in  which  there  is  a  confidence  re- 
posed, and  which  he  is  bound  to  execute  to  the  utmost  advantage  of 
i  In  person  who  employs  him.  He  cannot  be  allowed  to  place  himself 
in  a  situation  which,  under  ordinary  circumstances,  might  tempt 
him  nut  to  do  that  which  is  the  best  for  his  principal.181 

Principal  and  Agent. — Dealings  without  the  Intervention  of  the  Principal. 

It  is  therefore  settled  that  an  agent  who  is  employed  to  sell  cannot 
become  the  purchaser  surreptitiously,  and  without  the  knowledge 
or  consent  of  his  employer;102   nor  can  an  agent  employed  to  pm 
chase  buy  secretly  from  himself  or  for  his  own  benefit.188     All  such 
t  ransactions  are  voidable  at  the  principal's  option. 

Dealings  betiveen  Agent  and  Principal. 

There  is  no  rule  to  prevent  an  agent  from  dealing  with  his  prin- 
cipal as  to  the  matter  in  which  he  is  employed  as  agent.  The  pre- 
sumption, however,  is  against  the  validity  of  the  transaction;  and 
the  agent,  seeking  to  uphold  it,  must  shoAV  to  the  satisfaction  of  the 
court  that  he  gave  his  principal  the  same  advice  in  the  matter  as 
an  independent  and  disinterested  adviser  would  have  done,  and 
made  a  full  disclosure  of  all  he  knew  respecting  the  property,  and 
that  the  principal  knew  with  whom  he  was  dealing,  and  made  no 
objection  to  the  transaction,  and  that  the  price  was  just  and  fair.184 

Ala.  20;  Colton  v.  Stanford,  82  Cal.  351,  23  Pac.  16;  Marshall  v.  Stephens,  8 
Humph.  159;   Coles  v.  Trecothick,  9  Ves.  234,  246. 

i6i  East  India  Co.  v.  Henchman,  1  Ves.  Jr.  2S9;  Keighler  v.  Savage  Manuf'g 
Co.,  12  Md.  383;  Neuendorff  v.  World  Mut  Life  Ins.  Co.,  69  N.  Y.  389;  Wilber 
v.  Lynde,  49  Cal.  290;  Grumley  v.  Webb,  44  Mo.  444;  Dutton  v.  Willner,  52 
N.  Y.  312. 

Ex  parte  Hughes,  6  Ves.  617;  Lewis  v.  Hillman,  3  H.  L.  Cas.  607;  Cope- 
land  v.  Mercantile  Ins.  Co.,  6  Pick.  (Mass.)  198;  Adams  v.  Sayre,  70  Ala.  318; 
Fry  v.  Piatt,  32  Kan.  62,  3  Pac.  781;  Colbert  v.  Shepherd  (Va.)  16  S.  E.  246; 
Euneau  v.  Rieger,  105  Mo.  659,  16  S.  W.  854;  MeClendon  v.  Bradford  42  La. 
100,  7  South.  78,  and  8  South.  256. 

163  East  India  Co.  v.  Henchman,  1  Ves.  Jr.  289;  Tyrrell  v.  Bank  of  London, 
10  H.  L.  Cas.  26;  Conkcy  v.  Bond,  36  N.  Y.  427;  Tewksbury  v.  Spruance,  75 
111.  isT;  Bischoffsheim  v.  Baltzer,  20  Fed.  890;  Distrow  v.  Secor,  58  Conn.  35, 
18  Atl.  981. 

is*  Walsham  v.  Stainton,  1  De  Gex,  J.  &  S.  678;  Keith  v.  Kellam,  35  Fed. 
243;  Le  Gendre  v.  Byrnes,  44  N.  J.  Eq.  372,  14  Atl.  621;  Kerby  v.  Kerby,  57 
Md.  315;   Rochester  v.  Levering,  104  Ind.  562,  4  N.  E.  203;    Cook  v.  Berlin 


Ch.  7]  FRAUD.  149 

Attorney  and  Client. 

The  rules  governing  transactions  between  principal  and  agent 
apply  with  even  greater  strictness  to  those  between  attorney  and 
client.  The  client  is  entitled  to  the  full  benefit  of  the  best  exer- 
tions of  the  attorney,  and  the  highest  degree  of  good  faith  is  required 
of  him  in  all  dealings  with  his  client.  Even  contracts  for  compensa- 
tion are  closely  scrutinized  by  the  courts,  and  formerly  in  England  an 
agreement  to  pay  a  gross  sum  for  future  services  was  voidable  at 
the  client's  option.165  Recent  statutes  have,  however,  modified  this 
rule  somewhat,166  and  it  has  been  greatly  relaxed  with  us.167 

Respecting  contracts  other  than  for  compensation,  the  rale  is 
that  an  attorney  is  under  no  incapacity  to  buy  from  or  sell  to  his 
client.  The  burden,  however,  is  on  the  attorney  to  establish  affirm- 
atively that  his  transactions  with  his  client  were  fair  and  just;  that 
his  client  acted  on  full  information  of  all  the  material  circumstances; 
and  that  he  did  not  take  undue  advantage  of  his  client's  com- 
plaisance, confidence,  ignorance,  or  misconception.168  Lord  Eldon 
said,  regarding  the  purchase  of  a  client's  property  by  his  attorney: 
"The  attorney  must  prove  that  his  diligence  to  do  the  best  for  his 

Woolen  Mills  Co.,  43  Wis.  433.  "It  is  not  enough  for  an  agent  to  tell  the  prin- 
cipal that  he  is  going  to  have  an  interest  in  the  purchase,  or  to  have  a  part  in 
the  purchase.  He  must  tell  him  all  the  material  facts.  He  must  make  a  full 
disclosure."     Jessel,  M.  R.,  in  Dunne  v.  English,  L.  R.  18  Eq.  524. 

ic5  in  re  Newman,  30  Beav.  196. 

lee  33  &  34  Vict.  c.  28,  §  4;  44  &  45  Vict.  c.  44,  §  8;  In  re  Attorneys'  &  So- 
licitors' Act  1870,  1  Ch.  Div.  573. 

167  Special  contract  for  compensation  for  future  services  is  valid  if  the  attor- 
ney shows  that  it  is  free  from  fraud,  undue  influence,  or  exorbitance.  Planters' 
Bank  v.  Hornberger,  4  Cold.  531;  Blaisdell  v.  Ahern,  144  Mass.  393,  11  N.  E. 
681;  Ryan  v.  Ash  ton,  42  Iowa,  365;  Ballard  v.  Carr,  4S  Cal.  74.  In  Elmore  v. 
Johnson,  143  111.  513,  32  N.  E.  413,  it  was,  however,  held  that,  where  value  of 
property  depends  on  the  result  of  litigation  as  to  title,  a  contract  made  during 
its  pendency  to  compensate  the  attorney  with  part  of  the  property  is  voidable 
at  the  client's  election,  irrespective  of  the  fairness  or  unfairness  of  the  trans- 
action, provided  such  election  is  exercised  within  a  reasonable  time. 

168  place  v.  Hay  ward,  117  N.  Y.  487,  497,  23  N.  K  25;  Dunn  v.  Dunn,  42  N. 
J.  Eq.  431,  7  Atl.  842;  Baker  v.  Humphrey,  101  U.  S.  494;  Dunn  v.  Record, 
63  Me.  17;  Merryman  v.  Euler,  59  Md.  5S8;  Gresley  v.  Mousley,  4  De  Gex  & 
J.  78;  Luddy's  Trustee  v.  Peard,  33  Ch.  Div.  500. 


150  GROUNDS    FOR    KQUITABLE    RELIEF.  [Ch.  7 

vendor  has  been  as  greal  as  il"  he  was  only  an  attorney  dealing  for 
thai  vendor  with  a  stranger."  1C0 

l[. m  and  Ward. 
The  rule  of  equity  with  respect  to  dealings  between  guardian  and 
ward  is  extremely  strict;170  and  transactions  between  them  during 
the  existence  of  the  relationship  are  voidable  at  the  option  of  the 
ward.171  Even  transactions  which  have  taken  place  after  the  guard- 
ianship has  come  to  a  close  will  not  be  permitted  to  stand,  unless  the 
influence  which  is  presumed  to  arise  from  the  existence  of  the  re- 
lation  has  ceased  to  exist.172 

Parent  and  Child. 

The  presumption  of  undue  influence  in  transactions  between  parent 
and  child  is  not  as  strong  as  in  those  between  guardian  and  ward; 
but  still  courts  of  equity  will  scrutinize  them  closely,  and  will  re- 
quire the  parent  to  disprove  the  exercise  of  paternal  influence.17* 
The  question  usually  arises  with  respect  to  gifts,  and  accordingly 
falls  under  our  next  subdivision. 

Other  Cases. 

The  foregoing  illustrations  do  not  by  any  means  exhaust  the  list 
of  cases  in  which  fraud  and  undue  influence  is  presumed  by  reason 
of  the  fiduciary  relations  between  the  parties.  Promoters  and  offi- 
cers of  corporations  occupy  confidential  relations  towards  the  cor- 
poration and  the  stockholders,  and  they  are  governed  by  the  rules 
applicable  to  trustees  generally.174     So  with  executors  and  adminis- 

169  Gibson  v.  Jeyes,  6  Ves.  266,  271. 

i7o  Hylton  v.  Ilylton,  2  Ves.  Sr.  548,  549;  Hatch  v.  Hatch,  9  Ves.  292. 

i-i  Powell  v.  Glover,  3  P.  Wms.  251,  note;  Hendee  v.  Cleaveland,  54  Vt.  142; 
Walker  v.  Walker,  101  Mass.  169;  Meek  v.  Perry,  36  Miss.  190. 

i-2  Hylton  v.  Hylton,  2  Ves.  Sr.  549;  Waller  v.  Armistead,  2  Leigh  (Va.)  11; 
Wright  v.  Arnold,  14  B.  Mon.  63S;   Rist  v.  Hartner,  44  La.  430,  10  South.  759. 

"8  Williams  v.  Williams,  63  Md.  371;  Noble  v.  Moses,  74  Ala.  604;  Id.,  81 
Ala.  530,  1  South.  217;  Davis  v.  Dunne,  46  Iowa,  684;  Wright  v.  Vanderplank, 
8  De  Gex,  M.  &  G.  133;  Turner  v.  Collins,  7  Ch.  App.  329. 

174  Aberdeen  Ry.  Co.  v.  Blakie,  1  Macq.  461;  Thomas  v.  Brownvilie,  Ft.  K. 
&  P.  R.  Co.,  109  U.  S.  522,  3  Sup.  Ct.  315;  Munson  v.  Syracuse,  G.  &  C.  Ry.  Co., 
l^:;  X.  Y.  58,  8  N.  E.  355;  Parker  v.  Nickerson,  112  Mass.  195;  Erlanger  v. 
New  Sombrero  Phosphate  Co,  3  App.  Cas.  1218,  1230. 


Ch.  7]  FRAUD.  151 

trators,175  partners,176  and  husbands  and  wives.177  Indeed,  courts  of 
equity  have  always  been  careful  not  to  fetter  this  useful  jurisdiction 
by  defining  the  exact  limits  of  its  exercise.178 

SAME  —  GIFTS    BETWEEN    PERSONS    IN    FIDUCIARY  RELA- 
TIONS. 

94.  A  gift  to  one  in  a  fiduciary  relation  -with  the  donor 
is  regarded  with  even  greater  suspicion  than  a  contract 
between  such  persons.  The  donee  must  rebut  the  pre- 
sumption of  fraud  by  showing  that  the  gift  was  not  the 
result  of  undue  influence;  that  it  was  the  free,  voluntary, 
and  well-understood  act  of  the  donor;  and,  under  the 
English  rule,  that  he  had  independent  advice  in  the  mat- 
ter.179 

In  discussing  the  subject  of  contracts  between  persons  in  fiduciary 
relations,  it  was  shown  that  the  payment  of  a  fair  and  adequate  price 
was  one  of  the  facts  which  must  appear  in  order  to  sustain  the  trans- 
action.180 A  gift  to  a  person  in  a  fiduciary  relation,  in  which  there 
is  no  valuable  consideration  whatever,  is  therefore  subject  to  a  still 
more  jealous  scrutiny,  and  a  court  of  equity  will  weigh  every  such 
transaction  with  golden  scales.181  And  this  is  particularly  the  case 
when  the  effect  of  the  gift  is  to  divert  an  estate  from  those  who  by 
the  ties  of  nature  would  be  its  recipients.182  It  has  even  been  held 
that,  though  no  confidential  relation  subsists,  the  burden  is  on  the 
donee  to  show  the  righteousness  of  the  transaction,  and  that  the 

its  iVes  v.  Ashley,  97  Mass.  198;   Green  v.  Sargeant,  23  Vt.  466. 

176  Simons  v.  Vulcan  Oil  &  Min.  Co.,  61  Pa.  St.  202;  Wheeler  v.  Sage,  1 
Wall.  518;   Bowman  v.  Patrick,  36  Fed.  138. 

177  Shea  v.  Shea,  121  Pa.  St.  302,  15  Atl.  629;  Bartlett  v.  Bartlett,  15  Neb. 
593,  19  N.  W.  691;  Brison  v.  Brison,  75  Cal.  525,  17  Pac.  689;  Farmer  v.  Far- 
mer, 39  N.  J.  Eq.  211. 

178  Tate  v.  Williamson,  2  Ch.  App.  55. 

179  It  should  be  borne  in  mind  that  testamentary  gifts  are  not  within  the  op- 
eration of  this  rule,  and  that  it  applies  solely  to  gifts  inter  vivos. 

iso  Ante,  147,  148. 

i8i  Wright  v.  Vanderplank,  8  De  Gex,  M.  &  G.  137;    Huguenin  v.  Baseley, 
14  Ves.  275,  2  White  &  T.  Lead.  Cas.  Eq.  1156. 
182  Ross  v.  Conway,  92  Cal.  632,  28  Pac.  7S5. 


152  QBOUNDS    FOB    EQUITABLE    RELIEF.  [Ch.  7 

donor  knew  and  iindersl 1  what  he  was  doing.183    The  existence  of 

a  confidential  relatioD  add-  another  consideration;  and  the  question 
then  is  ool  whether  the  donor  knew  what  he  was  doing,  but  how  the 
intention  to  give  was  produced,  and,  though  the  donor  was  well 
aware  as  to  whal  he  did,  yet,  if  his  disposition  to  do  it  was  produced 
by  undue  influence,  the  transaction  will  be  set  aside.184  The  modern 
rule  in  England  is  that  such  a  gift  will  not  be  sustained  unless  the 
donor  had  competent  and  independent  advice  in  the  matter.185  With 
us,  however,  all  that  seems  to  be  necessary  is  to  show  the  absence 
of  undue  influence,  and  full  knowledge  by  the  donor  of  all  the  facts, 
and  of  the  nature  and  effect  of  the  transfer.188  If  these  things  ap- 
pear, the  gift  will  be  sustained,  for  there  is  no  rule  of  law  which  pro- 
hibits a  man  from  making  a  voluntary  disposition  of  his  property 
during  his  lifetime.187 

As  to  ilie  persons  within  the  operation  of  the  principle,  it  may 
be  stated  that  any  relationship  which  raises  a  presumption  against 
the  fairness  of  a  contract  necessarily  does  the  same  with  respect  to 
a  gift.  Donations  from  cestui  que  trust  to  trustee,188  from  principal 
to  agent,189  from  client  to  attorney,190  from  ward  to  guardian,191  from 
child  to  parent,192  are  all  presumptively  invalid.     Some  of  the  cases 

183  Hoghton  v.  Hoghton,  15  Beav.  299. 

is*  Huguenin  v.  Baseley,  14  Ves.  273,  2  White  &  T.  Lead.  Cas.  Eq.  1156. 

"5  Rhodes  v.  Bate,  1  Ch.  App.  252;   Smith  v.  Kay,  7  II.  L.  Cas.  772. 

188  Ralston  v.  Turpin,  129  U.  S.  675,  9  Sup.  Ct.  420;  Soboranes  v.  Soberanes, 
97  Cal.  140.  31  Pac.  910;  Sanfley  v.  Jackson,  16  Tex.  579;  Boyd  v.  De  La 
Montagnie,  73  N.  Y.  498,  502.  Same  rule  applied  to  will,  Garvin  v.  Williams, 
■II  Mo.  465. 

18T  Cases  cited  in  preceding  note. 

188  Hatch  v.  Hatch,  9  Ves.  292. 

189  Ralston  v.  Turpin,  129  U.  S.  675,  9  Sup.  Ct.  420;  Hall  v.  Knappenberger 
(Mo.  Sup.)  6  S.  W.  381;  Hobday  v.  Peters,  28  Beav.  349. 

190  Nesbit  v.  Lockman,  34  N.  Y.  167;  Greenfield's  Estate,  14  Pa.  St.  489.  In 
England  a  gift  to  an  attorney  made  by  a  client  pending  suit  will  not  be  sus- 
tained,  unless  the  client  had  independent  professional  advice.  Morgan  v. 
Miii.  it.  6  Ch.  Div.  638. 

Ajshton  v.  Thompson,  32  Minn.  25,  18  N.  W.  918;  Fish  v.  Miller,  1  Hoff. 
Ch.  li<;7;  Everitt  v.  Everitt,  L.  R.  10  Eq.  405;  Hylton  v.  Hylton,  2  Ves.  Sr. 
547,  549. 

i»2  Whitridge  v.  Whitridge,  76  Md.  54,  24  Atl.  645;  Baldock  v.  Johnson,  14 
Or.  542,  13  Pac.  434;  Taylor  v.  Taylor,  8  How.  183;  Baker  v.  Bradley,  7  De 
Gex,  M.  &  G.  597;  Wright  v.  Vanderplank,  S  De  Gex,  M.  vV  <;.  L35,  146. 


Ch.  7]  FRAUD.  153 

hold  that  undue  influence  is  not  to  be  inferred  from  the  relation  of 
parent  and  child,  where  the  gift  is  from  the  parent  to  the  child ; 193 
but  where  the  parent  is  of  great  age,  or  is  enfeebled  by  disease,  and 
conveys  his  entire  estate  to  one  child,  to  the  exclusion  of  other 
children  dependent  on  his  bounty,  the  burden  is  unquestionably  on 
the  donee  to  show  that  the  gift  was  made  freely  and  voluntarily, 
and  with  full  knowledge  of  all  the  facts,  and  with  perfect  under- 
standing of  the  effects  of  the  transfer.19*  In  addition  to  the  fore- 
going classes,  it  has  been  held  that  the  relation  between  a  physician 
and  his  patient  is  sufficient  to  support  a  claim  for  relief  against  a 
voluntary  gift,  on  the  ground  of  undue  influence.195  A  clergyman  or 
other  religious  adviser  is  likewise  within  the  principle;196  and  so 
is  a  professor  of  spiritualism,  with  respect  to  a  believer  in  his  art.197 
Gifts  by  wife  to  husband  are  not  outside  the  scope  of  the  rule,198 
and  even  a  gift  from  an  engaged  lady  to  her  suitor  is  liable  to  be 
carefully  scrutinized,  and,  to  sustain  it,  the  gentleman  must  be  pre- 
pared to  show  that  it  was  made  without  undue  solicitation  or  pres- 
sure.199 

FRAUDS  ON  THIRD  PERSONS. 

95.  Not  only  shall  parties  to  a  transaction  act  in  good 
faith  as  between  themselves,  but  they  shall  not  act  in  bad 
faith  in  respect  to   other  persons  "who  stand  in  such  rela- 

193  Millican  v.  Millican,  24  Tex.  446. 

i94Whelan  v.  Whelan,  3  Cow.  537;  Todd  v.  Grove,  33  Md.  194;  Highber- 
ger  v.  Stiffler,  21  Md.  352;  Soberanes  v.  Soberanes,  97  Cal.  140,  31  Pac.  910. 

195  Dent  v.  Bennett,  4  Mylne  &  C.  269;  Woodbury  v.  Woodbury,  141  Mass. 
329,  5  N.  E.  275.  The  relation  of  physician  and  patient  does  not  per  se  pre- 
vent the  physician  from  accepting  a  gift  from  the  patient.  Doggett  v.  Lane. 
12  Mo.  215;  Andenreid's  Appeal,  89  Pa.  St  114. 

we  Ford  v.  Hennessy,  70  Mo.  5S0;  Ross  v.  Conway,  92  Cal.  632,  28  Pac.  7S._>; 
Nachtrieb  v.  Harmony  Settlement,  3  Wall.  Jr.  66,  Fed.  Cas.  No.  10,003;  Hu- 
guenin  v.  Baseley,  14  Ves.  275,  2  White  &  T.  Lead.  Cas.  Eq.  1156. 

is?  Lyon  v.  Home,  L.  R.  6  Eq.  655. 

198  Boyd  v.  De  La  Montagnie,  73  N.  Y.  498,  502;  Stiles  v.  Stiles,  14  Mich.  72; 
Hollis  v.  Francois,  5  Tex.  195;  Campbell's  Appeal,  80  Pa.  St.  298;  Smyley  v. 
Reese,  53  Ala.  S9;   Scarborough  v.  Watkins,  9  B.  Mon.  540. 

199  page  v.  Home,  11  Beav.  227;   Cobbett  v.  Brock,  20  Beav.  524. 


154  GROUNDS  FOK  EQUITABLE  BELIEF.  [Ch.  7 

tions  to  either  as  to   be   affected  by  the  transaction  or  its 
consequences.200 

In  the  cases  considered  under  the  foregoing  subdivision,  one  of  the 
parties  to  a  transaction  or  his  privies  sought  to  impeach  it  for  fraud 
practiced  on  hira  by  the  other.  The  questions  now  to  be  considered 
arise  where  a  third  person,  not  a  party  to  the  transaction,  assails 
it.  for  collusion  between  the  parties,  resulting  in  prejudice  or  loss  to 
hi  in.     Several  classes  of  cases  fall  under  this  subdivision. 


SAME— COMPOSITION  WITH  CREDITORS. 

96.  A  composition  by  a  debtor  with  his  creditors,  under 
which  they  agree  to  accept  a  part  of  their  debts  in  satis- 
faction of  the  whole,  is  based  on  the  principle  that  all  the 
creditors  shall  stand  on  an  equal  footing,  and  observe 
good  faith  towards  each  other,  and  therefore  any  secret 
arrangement  between  the  debtor  and  a  particular  creditor 
whereby  he  is  placed  in  a  more  favored  position  than  the 
others  is  a  fraud  on  them,  and  renders  the  composition 
agreement  voidable.201 

Where  a  secret  preference  is  thus  given  one  of  the  creditors,  the 
others  have  the  right  to  rescind  the  composition  agreement,  and  re- 
cover the  full  amount  of  their  debts.202  On  the  other  hand,  the 
creditor  who  is  the  beneficiary  of  the  secret  agreement  cannot  en- 
force it  against  the  debtor;203   and  it  has  even  been  held  that  the 

200  Lord  Hardwicke,  in  2  Ves.  Sr.  15G,  157;  Wallis  v.  Duke  of  Portland,  3 
Ves.  502. 

201  Cullingworth  v.  Loyd,  2  Boav.  385;  Leicester  v.  Rose,  4  East,  372;  Rams- 
dell  v.  Edgarton,  S  Mete.  (Mass.)  227;  Lawrence  v.  Clark,  3G  N.  Y.  128;  Willis 
v.  Morris,  G3  Tex.  458. 

202  Kullman  v.  Greenebaum,  92  Cal.  403,  28  Pac.  674.  Subsequent  creditors 
not  parties  to  the  composition  agreement  cannot  attack  it.  Guggenheimer  v. 
Groeschel,  23  S.  C.  274. 

203  Jackman  v.  Mitchell,  13  Ves.  581;  Fay  v.  Fay,  121  Mass.  561;  Sternburg 
v.  Bowman,  103  Mass,  oii.~>;    Lawrence  v.  Clark,  36  N.  Y.  128. 


Ch.  7]  FRAUD.  155 

latter  may  recover  any  money  paid  by  him  to  such  creditor  under  the 
agreement.204 

SAME— FRAUDULENT  CONVEYANCES. 

97.  A  fraudulent  conveyance  is  one,  the  object,  tendency, 
or  effect  of  which  is  to  defraud  another,  or  the  intent  of 
•which  is  to  avoid  some  debt  due  by  or  duty  incumbent 
on  the  party  making  it.205 

Transfers  of  property  made  with  the  intention  of  defrauding  cred- 
itors were  voidable  at  common  law,206  on  the  principle  that  a  man 
must  be  just  before  he  is  generous;207  but  statutes  were  enacted  at 
an  early  day  in  England  with  a  view  of  affirming  the  rule  and  carry- 
ing the  principle  of  the  common  law  more  fully  into  effect.  The 
principal  of  these  was  the  statute  of  15  Eliz.  c.  5,  which  declared  all 
gifts,  grants,  and  conveyances  of  goods,  chattels,  or  lands  made  with 
an  intent  to  hinder,  delay,  or  defraud  creditors,  void  as  against  the 
person  to  whom  such  frauds  would  be  prejudicial;  but  conveyances 
made  bona  fide,  on  good  consideration,  and  without  notice  of  any 
fraud  or  collusion,  were  excepted  from  the  operation  of  the  statute.208 
This  statute  has  been  universally  adopted  in  this  country  as  the  basis 
of  our  jurisprudence  on  the  subject.209 

SAME— ESSENTIAL  ELEMENTS    OF   FRAUDULENT  CONVEY- 
ANCE. 

98.  To  render  a  conveyance  fraudulent,  there  must  be: 

(a)  A  creditor  to  be  defrauded. 

(b)  An  intention  to  defraud. 

(c)  A  transfer  of  property.210 

204  Mare  v.  Sandford,  1  Gift.  288.  This  proposition  is  doubted  in  Solinger  v. 
Earle,  82  N.  Y.  395,  on  the  ground  that  the  parties  are  in  pari  delicto. 

205  Bouv.  Law  Diet.  tit.  "Fraudulent  Conveyances";  2  Kent,  Conim.  *440; 
Wait,  Fraud.  Conv.  §  15. 

2oeTwyne's  Case,  3  Coke,  80,  1  Smith,  Lead.  Cas.  33;  Cadogan  v.  Kennett, 
2  Cowp.  432;   Clements  v.  Moore,  6  Wall.  312. 

207  Planters'  &  Merchants'  Bank  v.  Walker,  7  Ala.  946. 

208  Kerr,  Fraud  &  M.  148. 

209  Story,  Eq.  §  353;  2  Pom.  Eq.  Jur.  §  968. 

210  Wait,  Fraud.  Conv.  §  15;  Hoyt  v.  Godfrey,  8S  N.  Y.  669. 


lob"  GROUNDS    FOB    EQUITABLE    RELIEF.  [Ch.  7 

SAME— THE    CREDITOR. 

99.  Before  a  creditor  can  assail  a  conveyance  in  equity, 
he  must  have  reduced  his  debt  to  judgment,  or  have  ac- 
quired a  lien  on  specific  property,  or  placed  himself  in  a 
position  to  obtain  one  on  the  avoidance  of  the  transfer.211 
It  is  not  necessary,  however,  that  his  demand  be  certain 
and  liquidated  at  the  time  of  the  transfer,  or  that  it  be 
then  in  existence,  for  a  subsequent  creditor  may  avoid  a 
fraudulent  conveyance,  as  well  as  an  antecedent  or  exist- 
ing creditor. 

Courts  of  equity  are  not  tribunals  for  the  collection  of  debts;212 
and  therefore,  before  they  will  entertain  jurisdiction  of  an  action 
to  set  aside  a  debtor's  conveyance,  the  debt  must  be  established  by 
some  judicial  proceeding',  and  it  must  generally  be  shown  that  the 
L(  gal  means  for  its  collection  have  been  exhausted.213  If  the  ob- 
ject of  the  suit  be  to  reach  personal  property  or  equitable  assets,  it 
must  appear  that  an  execution  has  been  returned  unsatisfied,214 
unless  the  property  is  not  susceptible  to  levy.215  The  demand  need 
not,  however,  be  certain  and  liquidated  at  the  time  of  the  convey- 
ance. It  is  sufficient  that  the  creditor  has  a  cause  of  action  against 
the  debtor,  and  it  is  immaterial  whether  it  arises  out  of  contract  or 
out  of  tort.216  Thus,  it  has  been  held  that  one  who  has  a  cause  of 
action  for  libel  or  slander,217  seduction,218  breach  of  marriage  prom- 
ise,219  or  assault  and  battery220  is  a  "creditor,"  within  the  meaning 

211  Southard  v.  Benner,  72  N   Y.  426. 

212  Webster  v.  Clark,  25  Me.  314. 

213  Board  of  Public  Works  v.  Columbia  College,  17  Wall.  530;    Powell  v. 
Howell,  <;3  N.  C.  284;   Fox  v.  Moyer,  54  N.  Y.  128. 

214  Baxter  v.  Moses,  77  Me.  4G5,  1  Atl.  350;    McElwain  v.  Willis,  9  Wend. 
(N.  Vi  548;   Yasser  v.  Henderson,  40  Miss.  519;  Newman  v.  Willetts,  52  111.  98. 

2i5  Snodgrass  v.  Andrews,  30  Miss.  472. 

210  Bishop  v.  Redmond,  83  Ind.  157;   Weir  v.  Day,  57  Iowa,  S4,  10  N.  W.  304; 

□  v.  Bryant,  2  Pick.  411;   Bongard  v.  Block,  SI  111.  ISO. 
217  Cooke  v.  Cooke,  43  M<1.  r.-ji';  Hall  v.  Sands,  52  Me.  355. 
2i8  Hunsinger  v.  Ilofer,  110  Ind.  390,  11  N.  E.  463. 

2i»-Hoffmaii  v.  Junk,  51  Wis.  013,  8  N.  W.  493;   McVey  v.  Ritemous,  40  Ohio 
St.  107. 

Martin  v.  Walker,  112  Hun,  46. 


Ch.   7]  FRAUD.  157 

of  the  statute.  Nor  need  the  debt  be  in  existence  at  the  time  of  the 
conveyance.  It  may  be  avoided  by  subsequent  creditors  if  made 
in  contemplation  of  future  indebtedness,221  as  well  as  by  antecedent 
and  existing  creditors.  An  important  distinction,  however,  exists 
between  these  two  classes  of  creditors.  A  voluntary  conveyance  is 
presumptively  fraudulent  as  against  antecedent  and  existing  cred- 
itors ; 222  but  subsequent  creditors  have  the  burden  of  showing  that 
it  was  executed  as  a  cover  for  future  schemes  of  fraud.223 

SAME— INTENT  TO  DEFRAUD. 

100.  To  render  a  conveyance  voidable,  there  must  be  an 
intent,  participated  in  by  both  the  grantor  and  the  grantee, 
to  defraud  the  grantor's  creditors,  except  where  the  con- 
veyance is  voluntary,  when  the  grantor's  fraudulent  intent 
alone  will  be  sufficient  to  avoid  it. 

The  intent  to  hinder,  delay,  or  defraud  creditors  is  the  essential 
aEd  poisonous  element  in  the  transaction.224  'Intent  or  intention 
is  an  emotion  or  operation  of  the  mind,  and  can  usually  be  shown 
only  by  acts  or  declarations;  and.  as  acts  speak  louder  than  words, 
if  a  party  does  an  act  which  must  defraud  another  his  declaring  that 
he  did  not  by  the  act  intend  to  defraud  is  weighed  down  by  the  evi- 
dence of  his  own  act."  225  Since  every  man  is  presumed  to  intend 
the  natural  and  necessary  consequence  of  his  acts,  the  absence  of 
actual  or  meditated  fraud  is  not  in  all  cases  decisive  in  favor  of  the 
conveyance;226    and  therefore  a  voluntary  conveyance,  the  natural 

221  Case  v.  Phelps,  39  N.  Y.  164;  Day  v.  Cooley.  118  Mass.  527;  Mullen  v. 
Wilson.  44  Pa.  St.  413;    Smith  v.  Vodges,  92  U.  S.  1S3. 

222  Lerow  v.  Wilmarth,  9  Allen  (Mass.)  3S6;  Parish  v.  Murpkree,  13  How. 
92;  Babcock  v.  Eekler.  24  N.  T.  625;  Jenkins  v.  Clement,  1  Harp.  Eq.  (S.  C.) 
72.  14  Am.  Dec.  705.  note.  Some  cases  hold  that  a  voluntary  conveyance  is 
not  only  presumptively,  but  absolutely,  void,  as  against  existing  creditors. 
Reade  v.  Livingston,  3  Johns.  Ch.  (N.  Y.)  4S1;  Freeman  v.  Pope,  L.  R.  9  Eq. 
211. 

223  Horbach  v.  Hill.  112  U.  S.  149,  5  Sup.  Ct.  SI;  Teed  v.  Valentine,  65  N. 
Y.  474;   Matthai  v.  Heather,  57  Md.  4S3. 

224  Moore  v.  Hinnant,  89  X.  C.  455;   Worthy  v.  Brady,  91  N.  C.  269. 

225  per  Sutherland,  J.,  in  Babcock  v.  Eekler,  -4  X.  Y.  632. 

226  Lukins  v.  Aird,  6  Wall.  79;    Kisterbock's  Appeal,  51  Pa.  St.  4S5. 


158  GROUNDS    FOR    UJUITABLE    RELIEF.  [Ch.   7 

and  accessary  effecl  of  which  is  to  hinder,  delay,  and  defraud  cred- 
itors, is  voidable  by  them,  though  the  debtor  may  have  believed  he 
had  a  right  to  make  it.227 

We  mnv  come  to  the  question,  in  what  cases  must  the  grantee  par- 
ticipate in  the  grantor's  scheme  to  defraud,  in  order  to  render  the 
conveyance  voidable  by  the  grantor's  creditors?  In  considering  this 
qnesl  ton,  we  must  bear  in  mind  two  principles  heretofore  announced, 
viz.:  (1)  An  equity  founded  on  a  valuable  consideration  is  superior 
to  one  founded  on  a  mere  voluntary  transfer  or  gift;  and  (2)  an  equity 
to  a  specific  thing  is  superior  to  an  equity  general  in  its  scope  or 
nature.228  A  creditor  has  an  equity  which  entitles  him  to  subject 
his  debtor's  property  to  the  satisfaction  of  his  claim.  One  who  pur- 
chases that  property  for  a  valuable  consideration  after  that  debt 
was  incurred  has  also  an  equity  in  that  property;  and,  though  it  is 
subsequent  in  time  to  that  of  the  creditor,  it  is  yet  superior,  for  the 
obvious  reason  that  the  purchaser  has  not  trusted,  as  the  creditor 
has,  to  the  personal  responsibility  of  the  debtor,  but  has  paid  the  con- 
sideration  on  the  faith  of  the  debtor's  actual  title  to  the  specific 
property  transferred.229  The  creditor  must  therefore  prove  a  par- 
ticipation of  the  grantee  in  the  debtor's  fraud  whenever  the  grantee 
is  a  purchaser  for  value.230  When,  however,  the  transfer  is  not 
founded  on  a  valuable  consideration,  but  is  voluntary,  then  the 
other  principle  comes  into  play,  viz.  an  equity  founded  on  a  valuable 
consideration  is  superior  to  one  founded  on  a  mere  voluntary  trans- 
fer or  gift.  In  other  words,  a  creditor  whose  claim  is  founded  on  a 
valuable  consideration  may  impeach  a  voluntary  transfer  or  gift 
without  showing  that  the  grantee  participated  in  the  debtor's  fraud- 
ulent intent.231 

227  Potter  v.  McDowell,  31  Mo.  62. 

228  Ante,  99,  100. 

229  Seymour  v.  Wilson,  19  N.  Y.  417,  420. 

230  prewit  v.  Wilson,  103  U.  S.  22;  Mehlhop  v.  Pettibone,  54  Wis.  652,  11 
X.  W.  553,  and  12  X.  W.  443;  ScLroeder  v.  Walsh,  120  111.  403,  11  X.  E.  70; 
Jaeger  v.  Kelley,  52  X.  Y.  274;  Foster  v.  Hall,  12  Pick.  (Mass.)  89. 

231  Laughton  v.  Harden,  68  Me.  213;  Marden  v.  Babcock,  2  Mete.  (Mass.) 
104.    See,  also,  cases  cited  in  notes  222,  223. 


Ch.  7]  fraud.  159 


SAME— TRANSFER    OF   PROPERTY. 

101.  Property  of  all  kinds,  real  and  personal,  legal  and 
equitable,  vested,  reversionary,  or  contingent,  is  suscepti- 
ble of  fraudulent  alienation,  and  may  be  reclaimed  by  the 
grantor's  creditors.232 

QUALIFICATION— The  thing  disposed  of  must  be  of 
some  value,  out  of  which  the  creditors  might  have 
realized  the  whole  or  a  portion  of  their  claims.233 

"The  entire  property  of  which  a  debtor  is  the  real  or  beneficial 
owner  constitutes  a  fund  which  is  primarily  applicable,  to  the  fullest 
extent  of  its  entire  value,  to  the  payment  of  its  owner's  debts;  and 
the  courts  will  not  allow  any  of  that  value  to  be  withdrawn  from 
such  primary  application  if  they  can  find  any  legal  or  equitable 
ground  on  which  to  prevent  such  withdrawal." 234  The  right  of 
creditors  to  pursue  property  fraudulently  conveyed  away  by  their 
debtor  is  therefore  not  limited  to  that  which  is  of  a  tangible  nature, 
and  which  may  be  levied  on  and  sold  under  execution,  but  extends 
to  every  species  of  property,  including  intangible  rights  and  choses 
in  action,235  such  as  annuities,236  royalties,237  and  corporate  stock.238 

Qualification. 

An  important  limitation  on  the  right  of  the  creditors  to  pursue 
their  debtor's  property  is  this:  The  thing  disposed  of  must  be  of 
some  value,  out  of  which  the  creditors  might  have  realized  the  whole 
or  a  part  of  their  claims.239  Therefore  property  exempt  by  statute 
from  liability  for  the  grantor's  debts  cannot  be  reclaimed  by  his 
creditors.240 

232  May,  Fraud.  Con  v.  p.  17;  Wait,  Fraud.  Conv.  §§  24,  25. 

233  Hoyt  v.  Godfrey,  88  N.  Y.  669. 

234  Essay  by  Joshua  Reynolds,  Esq.,  on  "Fraudulent  Conveyances,"  quoted 
in  Wait,  Fraud.  Conv.  §  24. 

235  Wait,  Fraud.  Conv.  §  24. 

236  Norcutt  v.  Dodd,  1  Craig  &  P.  100. 

237  Lord  v.  Harte,  118  Mass.  271. 

238  Bayard  v.  Hoffman,  4  Johns.  Ch.  (N.  Y.)  450.  Equitable  interest  in  real 
estate,  Edmeston  v.  Lyde,  1  Paige  (N.  Y.)  641. 

239  Hoyt  v.  Godfrey,  88  N.  Y.  669. 

2«  O'Conner  v.  Ward,  60  Miss.  1037;   Nichols  v.  Easton,  91  U.  S.  726;   Car- 


160  GROUNDS  FOR  EQUITABLE  RELIEF.  [Ch.  7 

Another  exception  exists  as  to  the  personal  talents  and  industry 
of  tli«'  debtor.  The  creditors  cannot  compel  him  to  work;  and  hence 
lir  does  n«»t  defraud  them  if  he  chooses  to  give  away  his  services  by 
working  gratuitously  for  another.241 


SAME— FRAUD    ON    MARITAL    RIGHTS. 

102.  A  conveyance,  by  either  party  to  a  marriage  con- 
tract, of  his  or  her  property,  without  the  knowledge  of 
the  other,  and  with  the  intent  of  depriving  such  other  of 
the  rights  which  he  or  she  would  otherwise  acquire  in  the 
property  by  the  marriage,  is  a  fraud  on,  and  may  be 
avoided  by,  such  other. 

The  earlier  cases  on  this  subject  arose  where  a  woman,  in  con- 
templation of  marriage,  settled  her  real  estate  in  trust  to  her  sep- 
arate use,  for  the  purpose  of  depriving  her  intended  husband  of  the 
rents  and  profits  which  devolved  on  him  during  coverture  by  the 
common  law.  But  courts  of  equity,  though  they  were  wont  to  pro- 
tect married  women  in  the  enjoyment  of  their  separate  estates,  held 
that  such  a  conveyance  made  by  a  woman  pending  a  marriage  en- 
gagement, without  notice  to  her  intended  husband,  was  a  fraud  on 
the  husband's  marital  rights,  and  was  voidable  by  him  because 
affected  with  that  fraud.242  This  application  of  the  rule  has,  of 
course,  become  obsolete  since  the  enactment  of  the  married  women's 
statutes  in  the  several  states,  giving  married  women  complete  control 
of  their  real  estate;  and,  through  one  of  the  curious  changes  wrought 
by  Father  Time,  the  rule  is  now  chiefly  applied  to  protect  their  in- 
choate dower  interests  in  real  estate  conveyed  away  by  their  intend- 
ed husbands  in  contemplation  of  marriage,243  though  a  case  occa- 

hart  v.  Harshaw,  45  Wis.  340;  Taylor  v.  Duesterberg,  109  Ind.  165,  170,  9  N. 
E.  907;  Washburn  v.  Goodbeart,  88  HI.  229;  Rhead  v.  Hounson,  46  Mich.  243, 
9  X.  W.  267. 

2«  Abbey  v.  Deyo.  44  N.  Y.  347. 

2«  Strathmore  v.  Bowes,  1  Ves.  or.  22,  1  White  &  T.  Lead.  Cas.  Eq.  605; 
England  v.  Downs,  2  Beav.  522;   Lance  v.  Norman,  2  Ch.  R.  79. 

2*a  De  Armond  v.  De  Armond,  10  End.  191;  Smith  v.  Smith,  G  N.  J.  Eq.  515; 
Brown  v.  Bronson,  35  Mich.  415;    Leach  v.  Duvall,  8  Bush  (Ky.)  201;    Kelly 


Ch.  7]  FRAUD.  1G1 

sionally  arises  where  a  husband  complains  of  an  alienation  by  the 
wife  as  in  fraud  of  his  inchoate  estate  by  the  curtesy.244 

By  the  weight  of  modern  authority,  mere  noncommunication  to 
the  intended  spouse  of  the  execution  of  a  deed  in  contemplation  of 
marriage  is  not  conclusive  on  the  question  of  fraud,  but  the  cir- 
cumstances surrounding  the  case  may  be  shown; 245  and  a  voluntary 
conveyance  of  property  to  the  children  by  a  former  marriage  will  be 
upheld  where  no  representation  has  been  made  to  the  intended 
spouse  as  to  the  extent  of  the  grantor's  property,  and  the  provision 
for  the  children  is  reasonable  when  compared  with  the  balance  of  the 
estate.24* 

SAME— FRAUD    ON   POWERS. 

103.  The  donee  of  a  limited  power  must  execute  it  bona 
fide,  for  the  end  designed;  otherwise  the  appointment  will 
be  held  fraudulent  and  void  in  equity. 

Where  an  owner  of  land  confers  on  another  a  power  to  dispose  of 
an  estate  therein,  the  donee  of  the  power  must  act  with  good  faith 
and  sincerity,  and  with  an  entire  and  single  view  to  the  real  pur- 
pose and  object  of  the  power.  He  cannot  carry  into  execution  any 
indirect  object,  or  acquire  any  benefit  for  himself,  either  directly  or 
indirectly.247  Thus,  where  a  father  has  a  power  of  appointment 
among  his  children,  an  appointment  in  favor  of  one  of  them,  in  con- 
sideration of  a  promise  by  the  appointee  to  pay  the  father's  debts, 
is  void.248  So,  also,  an  appointment  will  be  deemed  fraudulent 
when  a  father,  having  a  power  of  raising  portions  for  his  children, 
directs  a  portion  to  be  raised  long  before  it  is  required,  or  in  favor  of 

v.  McGrath,  70  Ala.  75;    Swaine  v.  Perine,  5  Johns  Ch.  482;    Kline  v.  Kline, 
57  Pa.  St.  120;  Beere  v.  Beere,  79  Iowa,  555,  44  N.  W.  809. 

244  Ferebee  v.  Pritchard,  112  N.  C.  83,  16  S.  E.  903. 

245  Dudley  v.  Dudley,  76  Wis.  567,  45  N.  W.  602;  Champlin  v.  Champlin,  16 
R.  I.  314,  15  Atl.  85;  Butler  v.  Butler,  21  Kan.  521. 

246  Alkire  v.  Alkire,  134  Ind.  350,  32  N.  E.  573;  Kinne  v.  Webb,  54  Fed.  Rep. 
34;  Murray  v.  Murray,  90  Ky.  1,  13  S.  W.  244. 

247Aleyn  v.  Belchier,  1  Eden,  132,  1  White  &  T.  Lead.  Cas.  Eq.  573;    Port- 
land v.  Tophan,  11  H.  L.  Cas.  32. 
248  Farmer  v.  Martin,  2  Sim.  502;    In  re  Kirwan's  Trusts,  25  Ch.  Div.  373. 
eq.jur.— 11 


162  GROUNDS    FOR    EQUITABLE    RELIEF.  [Uh.  7 

a  sickly  child,  with  a  view  of  acquiring  the  money  on  its  decease  as 
next  of  kin.249 

2*8  Hinehingbroke  v.  Seymour,  1  Brown.  Ch.  395;  Wellesley  v.  Mornington, 
2  Kay  &  J.  143.  American  cases  on  this  subject  are  very  few.  The  question 
of  fraudulent  execution  of  powers  has,  however,  been  considered  in  the  follow- 
ing, among  other,  cases:  William's  Appeal,  73  Pa.  St  249;  Jackson  v.  Veeder, 
11  Johns.  169,  171;  Haynesworth  v.  Cox,  Harp.  Eq.  (S.  C.)  117,  119;  Buding- 
ton  v.  Munson,  33  Conn.  481;   Lippincott  v.  Ridgway,  10  N.  J.  Eq.  164. 


Ch.  8]  PROPERTY    IN    EQUITY TRUSTS.                                         163 

CHAPTER   VIII. 

PROPERTY  IN  EQUITY— TRUSTS. 

104.  Definition  and  History  of  Trusts. 

105.  Classification  of  Trusts. 

106.  Express  Private  Trusts. 

107.  Parties. 

108.  The  Settlor. 

109.  The  Trustee. 

110.  Cestui  Que  Trust 

111.  What  Property  Subject  to  Trust. 

112.  Creation  of  Trust. 

113.  Words  Essential  to  Create  Trust. 

114.  Consideration  to  Support  Trust— Voluntary  Settlements. 

115.  The  Object  Proposed  by  the  Trust. 
116-119.  Interpretation  of  Trusts. 

120.  Nature  of  Cestui  Que  Trust's  Estate. 

121.  Passive  Trusts. 

122.  Active  or  Special  Trusts. 

123.  Public  or  Charitable  Trusts. 

124.  Resulting  Trusts. 

125.  Classification. 

126.  Parting  with  Legal  and  Retaining  Equitable  Interest. 

127.  Purchase  in  Name  of  Third  Person. 

128.  Purchase  in  Name  of  Stranger. 

129.  Purchase  in  Name  of  Wife,  Child,  or  Near  Relative. 

130.  Constructive  Trusts. 

131.  Duties  and  Liabilities  of  Trustees. 

132.  Getting  in  Outstanding  Trust  Property. 
133, 134.  Custody  and  Care  of  Trust  Property. 

135.  Investments. 

136.  Liability  for  Acts  of  Cotrustee. 

137.  Compensation. 

138.  Remedies  of  Cestui  Que  Trust— Following  Trust  Estate. 

139.  Personal  Remedies. 

140.  Removal  of  Trustee. 

DEFINITION   AND   HISTORY    OF   TRUSTS. 

104.  A  trust  may  be  defined  to  be  an  obligation  under 

■which  a  person  in   whom  the   legal   title  to   property  is 


L64  PROPERTY    IN    EQUITY — TRUSTS.  [Ch.  8 

vested  is  bound  in  equity  to  deal  -with  the  beneficial  in- 
terest therein  in  a  particular  manner,  either  wholly  in 
favor  of  others,  or  partly  in  favor  of  others  conjointly  with 
himself.1 

The  introduction  of  uses  and  trusts  in  the  English  law  is  generally 
ascribed  to  the  clergy.  In  the  reign  of  Edward  L,  statutes  of  morr- 
main  were  enacted,  which  prohibited  lands  from  being  granted  to 
religious  houses.  It  is  generally  supposed  that  the  clergy,  who  were 
familiar  with  the  dual  ownerships  of  the  Koman  law,  conceived  the 
idea  of  evading  these  statutes  by  grants  to  feoffees  for  the  benefit  of 
these  houses.  Mr.  Justice  Holmes  -  has,  however,  traced  the  origin 
of  uses  and  trusts  to  a  different  source,  and  he  finds  in  the  Teutonic 
"salman"  the  ancestor  of  the  medieval  feoffee  to  uses.  Each  was 
a  person  to  whom  property  was  transferred  in  order  that  he  might 
make  a  conveyance  according  to  the  grantor's  directions,  and  the 
essence  of  the  relation  in  each  case  was  the  fiducia  of  the  grantee. 
Thus,  the  executor  was  originally  a  salman,  whose  duty  it  was  to  dis- 
tribute the  estate  in  the  manner  directed  by  the  will  of  the  owner, 
including  real  estate,  until  devises  were  prohibited  under  the  early 
Plantagenets. 

But  whatever  may  have  been  its  origin,  the  reason  for  the  perpetua- 
tion of  the  system  of  uses  is  to  be  found  in  the  hardships  and  re- 
strictions incident  to  the  feudal  tenure  of  land.  Absolute  ownership 
in  land  was  never  recognized  by  the  common  law.  The  person  in 
possession  or  enjoyment  was  vested  only  with  a  legal  estate  or  inter- 
est, of  greater  or  less  extent  or  duration,  subject  to  the  right  of  a 
superior  lord,  or,  at  any  rate,  of  the  crown,  as  chief  and  paramount 
lord  of  all  the  soil  of  the  country. 

During  a  period  of  500  years,  from  the  days  of  the  Norman  Con- 
quest to  the  time  of  Henry  VIIL,  this  legal  estate  or  interest  could 
not  be  devised  by  will,  and  no  means  existed  by  which  the  legal  es- 
tate could  be  prevented  from  passing  to  the  natural  heir,  who  was 
generally  the  oldest  son,  with  the  possible  result  that  the  other 

i  Underh.  Eq.  p.  32.  In  the  preparation  of  the  following  sketch  of  the 
history  of  uses  and  trusts,  Haynes'  Outlines  of  Equity  and  Kerley's  History 
of  Equity  have  been  my  chief  guides. 

-  1  Law  Quar.  Rev.  163. 


Ch.   8]  DEFINITION    AND    HISTORY    OF    TRUSTS.  165 

children  might  be  left  unprovided  for.  The  court  of  chancery,  how- 
ever, held  that,  if  land  was  conveyed  to  feoffees  to  use,  the  use  was 
devisable;  and  thus,  by  putting  the  land  in  use,  an  absolute  power 
of  testamentary  disposition  was  acquired.  Again,  the  legal  interest 
in  land  could  be  conveyed  only  in  a  formal  notorious  manner  by 
livery  of  seisin;  that  is,  the  conveying  party  executed  a  deed  of 
feoffment,  and  then  openly,  on  the  land  itself,  delivered  seisin  to  the 
feoffee  by  handing  to  him  a  clod,  a  piece  of  turf,  or  a  twig,  with  words 
showing  that  the  delivery  so  made  was  symbolical  of  the  delivery  of 
the  whole  property.  But,  when  the  land  had  been  conveyed  to  uses, 
the  cestui  que  use  might  deal  with  the  beneficial  interest  by  an 
entirely  secret  deed  or  instrument,  without  livery.  The  acquisition 
of  these  larger  powers  of  alienation  must  have  been  a  great  induce- 
ment for  putting  lands  in  use. 

Again,  the  use  was  not  forfeitable  for  the  offense  of  the  cestui  que 
use,  nor  did  it  escheat  in  the  event  of  attainder,  though  the  land 
itself  was  liable  to  be  forfeited,  or  to  escheat,  in  the  event  of  the 
attainder  of  the  feoffee  to  uses.  In  the  turbulent  times  of  the  mid- 
dle ages,  men  who  took  an  active  interest  in  political  movements 
would  therefore  naturally  vest  their  estates  in  feoffees  to  uses  whose 
known  characters  were  guaranties  against  the  exposure  of  the  estates 
to  forfeiture  or  escheat. 

Another  inducement  to  put  lands  in  use  is  to  be  found  in  a  desire 
to  escape  from  many  of  the  oppressive  feudal  rights  of  the  lord,  such 
as  marriage  and  wardship.  The  rights  of  wardship  enabled  the 
lord,  when  a  tenant  by  knight  service  died  leaving  an  infant  heir, 
to  enter  on  the  heir's  lands,  and  to  take  the  whole  rents  and  profits 
during  minority,  subject  to  the  heir's  maintenance.  The  right  of 
marriage  authorized  the  lord  to  marry  his  ward  to  the  highest  bid- 
der, subject  to  the  only  restriction  that  the  marriage  was  not  a 
disparaging  one;  and,  if  the  ward  refused  to  accept  the  marriage 
offered,  he  was  heavily  mulcted. 

Still  another  inducement  to  put  land  in  use  is  to  be  found  in  the 
fact  that  a  creditor  could,  by  means  of  the  writ  of  elegit,  take  posses- 
sion of  one-half  the  lands  of  which  his  debtor  was  seised  of  a  legal 
estate,  and  subject  the  rents  and  profits  in  satisfaction  of  his  debts; 
but  he  had  no  such  power  over  the  use. 


166  PROPERTY    IX    EQUITY — TRUSTS.  [Ch.   8 

For  all  the  foregoing  reasons,  the  custom  of  putting  lands  in  use 
became  extremely  popular  among  tenants.  But,  for  the  same  rea- 
Bons,  it  must  have  been  extremely  distasteful  to  the  great  lords  and 
!h"  crown,  who  were  defrauded  of  their  "wardships,  relieifis,  heriots, 
and  escheats,''  and  to  the  creditors  who  were  deprived  of  their  "ex- 
tent for  debt."3  The  statute  books  of  England  bear  witness  to  a 
continual  struggle  against  the  system.4  Finally,  in  the  reign  of 
Henry  VIII.  a  supreme  effort  was  made  to  sweep  away  uses,  root  and 
branch.  The  celebrated  statute  of  uses  (St.  27  Hen.  VIII.  c.  10)  was 
passed  to  reinstate  the  "common  laws  of  this  realm"  by  turning  the 
equitable  uses  into  legal  estates,  with  all  the  incidents  and  burdens 
of  legal  estates.5, 

s  Bacon's  Works,  Use  of  the  Law,  vol.  13,  p.  240.  The  whole  of  this  oft- 
quoted  passage,  arraigning  the  system  of  uses,  is  as  follows:  "A  man  that 
had  cause  to  sue  for  his  land  knew  not  against  whom  to  bring  his  action,  nor 
who  was  the  owner  of  it.  The  wife  was  defrauded  of  her  thirds;  the  husband 
of  being  tenant  by  the  curtesy;  the  lord  of  his  wardship,  relief,  heriot,  and 
escheat;  the  creditor  of  his  extent  for  debt;  the  poor  tenant  of  his  lease." 

*  The  more  important  of  those  statutes  are  50  Edw.  III.  c.  6,  giving  creditors 
execution  against  lands  and  chattels  in  spite  of  gifts  made  in  fraud  of  them; 
7  Rich.  II.  c.  12,  forbidding  aliens,  and  15  Rich.  II.  c.  5,  forbidding  spiritual 
corporations  or  persons,  to  hold  lands  by  way  of  use;  1  Rich.  II.  c.  1,  making 
all  grants  by  and  executions  against  a  seller  of  lands  binding  upon  his  heirs 
and  upon  feoffees  to  his  or  their  use;  3  Hen.  VII.  c.  4,  forbidding  deeds  of 
gift  on  trust  made  to  defraud  creditors;  4  Hen.  VII.  c.  17,  declaring  uses  liable 
to  wardships  and  reliefs;  19  Hen.  VII.  c.  15,  declaring  them  liable  to  execution; 
and  26  Hen.  VIII.  c.  13,  declaring  them  liable  to  forfeiture.  In  the  twenty- 
third  year  of  the  reign  of  Henry  VIII.  a  bill  passed  the  house  of  lords  greatly 
circumscribing  the  right  to  put  land  in  use,  but  it  was  rejected  by  the  commons. 

s  The  following  is  a  summary  of  the  statute:  The  preamble  complains  that 
by  secret  conveyances,  and  by  wills  made  "by  nude  parolx  and  words,  some- 
times by  signs  and  tokens,  and  sometimes  by  writing"  made  for  the  most  part 
by  persons  in  extremis,  with  "scantly  any  good  memory  or  remembrance," 
and  "provoked  by  greedy  and  covetous  persons  lying  in  wait  about  them," 
many  persons  indiscreetly  disposed  of  their  inheritance,  whereby  heirs  lost 
their  lands,  and  lords  their  rights,  and  purchasers  were  made  insecure;  men 
lost  their  tenancies  by  curtesy,  and  women  their  dowers;  perjuries  were  en- 
couraged, and  the  king  was  deprived  of  his  profits  in  attainder,  and  on  pur- 
chases by  aliens;  and  many  other  inconveniences  happened, — to  the  "utter 
subversion  of  the  ancient  common  laws  of  this  realm."  The  statute  then 
provides,  "for  Jhe  exterping  and  extinguishment"  of  these  errors,  that  "where 
any  person  or  persons  stand  or  be  seized  of  and  in  any  lands,  tenements,  or 


Ch.   8]  DEFINITION    AND    HISTORY    OF    TRUSTS.  167 

The  history  of  the  English-speaking  race  does  not  furnish  a  more 
conspicuous  example  of  the  futility  of  legislation  when  opposed  to 
current  public  opinion.6  The  statute  declared  that  when  any  person 
stood  "seized"  of  any  "hereditament,"  to  the  use  of  another,  such 
other  should  be  deemed  in  lawful  "seizin"  of  the  "hereditament." 
Since  the  words  "seized,"  "seizin,"  and  "hereditament"  were  applica- 
ble only  to  freehold  estates,  the  statute  was  adjudged  not  to  affect 
any  trusts  of  personal  property  or  chattels  or  terms  for  years  in  land. 
It  was  also  held,  soon  after  the  statute  was  passed,  that  special 
trusts,  which  cast  some  duty  on  the  trustee,  remained  unexecuted 
by  the  statute,  since  in  such  case  the  trustee  was  not  seised  wholly 
to  the  use  of  another,  but  partly,  at  least,  to  his  own  use. 

The  complete  nullification  of  the  statute,  however,  resulted  from  a 
decision  of  the  common-law  judges  rendered  about  20  years  after  its 
enactment.  To  enable  the  student  to  clearly  understand  this  deci- 
sion, it  is  desirable  to  specifically  call  his  attention  to  the  operation 
of  the  statute.  Before  the  statute,  if  there  was  a  feoffment  to  A. 
and  his  heirs,  to  the  use  of  B.  and  his  heirs,  A.  took  a  legal  estate 
in  fee  simple,  and  B.  was  a  cestui  que  use,  whose  rights  were  disre- 
garded by  the  common-law  courts,  and  who  could  seek  his  remedies 
only  in  chancery.  After  the  statute  the  same  limitation  would  se- 
cure, not  only  the  use,  but  also  the  legal  estate  to  B. ;  in  other  words, 
the  use  would  at  once  draw  to  itself  the  legal  estate,  or,  as  it  is  tech- 
nically expressed,  the  statute  executed  the  use  in  B.  In  the  decision 
above  referred  to,  known  as  "Tyrrell's  Case," T  the  common-law  judges 
held  that  a  use  could  not  be  limited  upon  a  use.     It  therefore  fol- 

other  hereditaments  to  the  use,  confidence,  or  trust  of  any  other  person  or 
persons  or  any  body  publick,  by  reason  of  any  bargain,  sale,  feoffment,  fine, 
recovery,  covenant,  contract,  agreement,  will  or  otherwise,  all  and  every  such 
person  and  persons  and  bodies  politick  that  have  any  such  use,  confidence  or 
trust  in  fee  simple  or  otherwise,  or  in  remainder  or  in  reverter,  shall  stand 
and  be  seized  and  adjudged  in  lawful  seizin,  estate  and  possession  of  and 
in  the  same  lands,  *  *  *  of  and  in  such  like  estates  as  they  had  on  use, 
trust  or  confidence  of  or  in  the  same.'7     Kerley,  Hist.  Eq.  pp.  132,  133. 

«  Mr.  Sugden,  in  his  introduction  to  Gilbert  on  Uses  (page  G3),  says  of  the 
judicial  nullification  of  the  statute:  "This  should  operate  as  a  lesson  to  the 
legislature  not  vainly  to  oppose  the  current  of  general  opinion;  for,  although 
diverted  for  a  time,  it  will  regain  its  old  channel." 

7  2  Dyer,  155a,  1  White  &  T.  Lead.  Cas.  Eq.  335. 


PROPERTY    IN    EQUITY — TRUST8.  [Cll.   8 

lowed  from  this  decision  that  when  there  was  a  limitation  to  A.  and 
bis  heirs,  to  the  use  of  B.  and  his  heirs,  to  the  use  of  0.  (or  in  trust 
for  <  J.)  and  his  heirs,  the  statute  had  no  effect  beyond  the  use  limited 
to  B.  It  converted  the  use  first  declared  into  a  legal  estate,  but  in 
bo  doing  its  power  was  exhausted,  and  a  second  use  or  trust,  declared 
upon  or  after  the  first,  remained  unaffected  thereby.  The  court  of 
chancery,  however,  following  its  former  course  of  preserving  to  a 
grantee  rights  which  were  meant  to  be  preserved  by  the  grant, 
stepped  in  and  supported,  as  trusts  identical  in  character  with  the 
old  uses,  the  trusts  or  uses  which  the  law  refused  to  recognize,  and 
these  are  the  trusts  so  familiar  in  later  equity.  The  student  is  now 
able  to  appreciate  Lord  Hardwicke's  remark:  "A  statute  made  upon 
great  consideration,  introduced  in  a  solemn  and  pompous  manner, 
by  a  strict  construction,  has  had  no  other  effect  than  to  add  at  most 
three  words  to  a  conveyance." 8 

It  is  not  necessary  to  add  to  this  brief  sketch  a  history  of  the  vari- 
ous steps  by  which  trusts  have  obtained  their  present  position  in  our 
jurisprudence.  Enough  has  been  said  to  render  the  definition  of  a 
trust  intelligible,  and  it  remains  to  point  out  the  leading  principles 
governing  this  class  of  property. 

CLASSIFICATION    OP    TRUSTS. 

105.  Trusts  may  be  classified,  as  follows: 

(a)  Trusts  created  by  the  intentional  acts  of  the 

parties. 

(1)  Express  private  trusts. 

(2)  Public  or  charitable  trusts. 

(b)  Trusts  created  by  operation  of  law. 

(1)  Resulting  trusts. 

(2)  Constructive  trusts. 

The  foregoing  classification  by  Mr.  Lewin 9  not  only  calls  attention 
to  the  very  prominent  distinction  between  the  different  kinds  of 

s  Hopkins  v.  Hopkins,  1  Atk.  591. 

9  Lewin,  Trusts,  p.  18.  Some  writers  use  the  term  "implied  trusts"  to  desig- 
nate the  trusts  created  by  operation  of  law.  Others  apply  the  same  term  to 
a  class  of  express  private  trusts  where,  owing  to  the/ ambiguous  language 


Ch.   8]  EXPRESS    PRIVATE    TRUSTS.  1G9 

trusts  as  regards  their  creation,  but  it  also  coincides  with  an  equally 
prominent  distinction  in  the  nature  of  trusts  themselves.  These  four 
species  of  trusts  will  naturally  yield  to  further  analysis  as  each  is 
separately  considered.  Our  attention  will  first  be  directed  to  ex- 
press private  trusts. 

EXPRESS   PRIVATE    TRUSTS. 

106.  An  express  private  trust  is  one  created  for  the 
benefit  of  individuals  or  families,  and  designed  for  pri- 
vate convenience  and  support.10 

The  distinction  between  a  private  and  a  public  or  charitable  trust 
is  that  the  former  is  created  and  intended  for  the  convenience  and 
support  of  private  individuals  or  families,  while  the  latter  is  created 
and  intended  for  the  general  public  good.  The  rules  governing  the 
two  classes  differ  widely,  and  the  distinctions  will  be  pointed  out 
when  we  consider  public  or  charitable  trusts. 

SAME— PARTIES. 

107.  The  parties  necessary  to  the  creation  of  an  express 
trust  are: 

(a)  The  settlor,  or  person  creating  the  trust. 

(b)  The  trustee,  or  the  person  in  whom  the  legal  title 

is  vested. 

(c)  The    cestui   que    trust,    or   person   entitled  to    the 

beneficial  interest. 

SAME— THE    SETTLOR. 

108.  Whoever  is  competent  to  deal  with  the  legal  estate 
may,  if  he  be  so  disposed,  vest  it  in  a  trustee  for  the  pur- 
pose of  executing  the  settlor's  intention.11 

employed  by  the  parties,  their  intention  to  create  a  trust  is  inferred  or  implied 
from  the  terms  employed.  The  term  "implied  trusts"  has  therefore  been 
designedly  rejected  as  tending  to  confuse  the  student. 

io  Perry,  Trusts,  §  22. 

n  Lewin,  Trusts,  p.  21. 


170  PROPERTY    IN    EQUITY — TR1  [Cll.  8 

The  creation  of  a  trust  is  a  modification  of  property  in  a  particular 
fm  in.  All  persons  sui  juris  may  impress  a  trust  on  property  owned 
by  them.  A  corporation  may  create  a  trust  in  land  whenever  it  lias 
the  power  to  alienate  it.1-  As  to  persons  under  disability,  such  as 
infants,  married  women,  and  lunatics,  trusts  created  by  them  are  on 
the  same  footing  as  absolute  conveyances,  and  are  voidable  by  them 
in  the  same  manner  and  to  the  same  extent  as  such  conveyances 
would  be.13 

SAME— THE    TRUSTEE. 

109.  The  trustee  should  be  a  person  capable  of  taking 
and  holding  the  legal  estate,  and  possessed  of  natural 
capacity  and  legal  ability  to  execute  the  trust,  and  domi- 
ciled -within  the  jurisdiction  of  the  court." 

1.  The  sovereign  may  sustain  the  character  of  a  trustee,  so  far  as 
regards  the  capacity  to  take  the  estate  and  execute  the  trust;  but 
the  difficulty  lies  in  the  remedy  by  which  the  cestui  que  trust  can  en- 
force the  performance  of  the  trust.15  Since  neither  the  United  States 
nor  any  of  the  states  can  be  sued  without  their  consent,  the  only  way 
in  which  they  could  administer  a  trust  is  through  the  legislative 
power.16 

-.  Since  the  ancient  doctrine  that  a  trust  rests  on  the  foundation 
of  personal  confidence  has  evaporated,  a  corporation  may  now  be  a 
trustee,  provided  the  trust  is  within  the  general  scope  of  its  corporate 
powers.17  An  unincorporated  association  cannot,  however,  act  as 
trustee  of  a  private  trust,  since  it  is  incapable  of  taking  title  to  the 
land.18 

12  Mayor,  etc.,  of  Colchester  v.  Lowten,  1  Ves.  &  B.  226;    State  v.  Bank  of 
Maryland,  6  Gill  &  J.  205;   Dana  v.  Bank  of  U.  S.,  5  Watts  &  S.  226. 
Perry,  Trusts,  §§  32-35. 

i*  Lewln,  Trusts,  p.  30. 

■     I. .win.  Trusts,  p.  30. 

io This  was  done  In  the  case  of  the  Smithsonian  Institute,  a  public  trust. 
St.it.  U.  S.  1S3G,  c.  252. 

i-  Attorney  General  v.  St.  John's  Hospital,  2  De  Gex,  J.  &  S.  621.  In  re 
Howe,  1  Paige,  214;  Story.  J.,  Vidal  v.  Girard,  2  How.  188-190.  In  recent 
years  the  organization  of  trust  companies  having  for  their  object  the  adminis- 
tration of  trust  estates  has  become  very  common  in  this  country. 

is  The  rule  is  dlfferenl   with  respect  to  public  trusts.     Tucker  v.  Seaman's 


Ch.   8]  EXPRESS    PRIVATE    TRUSTS.  171 

3.  A  married  woman  is  legally  capable  of  being  a  trustee;  but,  ex- 
cept in  special  cases,  courts  regard  her  appointment  as  undesirable, 
because  of  the  influence  her  husband  is  supposed  to  wield  over  her.19 
For  this  reason  it  rs  also  inadvisable  to  make  an  unmarried  woman 
a  trustee,  since,  if  she  should  marry,  the  above  disadvantages  would 
at  once  arise.20 

4.  An  infant  is  under  still  greater  disabilities,  having  no  legal 
capacity  or  discretion.  All  of  his  acts,  beyond  such  as  are  merely 
ministerial,  are  voidable.  He  cannot  be  held  guilty  of  a  breach  of 
trust.  A  case,  therefore,  is  scarcely  conceivable  in  which  circum- 
stances could  warrant  such  an  appointment.21 

5.  An  alien  cannot  act  as  trustee  of  real  property,  except  in  those 
states  where  he  is  permitted  to  hold  land  to  his  own  use.22  There  is 
no  objection  anywhere,  however,  to  his  appointment  as  trustee  of  per- 
sonal property. 

6.  While  an  insolvent  is  not  absolutely  disqualified  from  being  a 
trustee,  and  his  insolvency  has  no  effect  on  the  trust  estate,23  his 
insolvency  is  unquestionably  a  good  ground  for  his  removal.24 

7.  Lastly,  equity  never  wants  a  trustee;  and,  whenever  a  trust 
is  valid  in  its  inception,  equity  will  not  permit  it  to  fail  either  because 
of  the  trustee's  death  or  his  refusal  to  act,  but  will  itself  provide  a 
trustee.25 

SAME— CESTUI    QUE    TRUST. 

110.  Under  the  maxim  that  equity  follows  the  law,  any 
one  capable  of  taking  the  legal  estate  may,  through  the 
channel  of  trusts,  be  made  the  recipient  of  the  equitable;26 

Aid  Soc,  7  Mete.  (Mass.)  188;  Winslow  v.  Cummings,  3  Cush.  358.     See  post, 
188. 

loDrummond  v.  Tracy,  1  Johns.  Eng.  Ch.  608;   Still  y.  Ruby,  35  Pa.  St.  373. 

20  in  re  Campbell's  Trusts,  31  Beav.  176. 

2i  Smith,  Priu.  Eq.  p.  26;   Perry,  Trusts,  §§  52-54. 

22  Perry,  Trusts,  §  55. 

23  Harris  v.  Harris,  29  Beav.  107;   Shryock  v.  Waggoner,  28  Pa.  St.  431. 

2*  In  re  Barker's  Trusts,  1  Ch.  Div.  43;  In  re  Adams'  Trust,  12  Ch.  Div.  634. 
See,  also,  post,  211. 

28  Story,  Eq.  §  976;  McCartee  v.  Orphan  Asylum  Soc,  9  Cow.  (N.  Y.)  437; 
Bowditch  v.  Banuelos,  1  Gray,  220;  Dodkin  v.  Brunt,  L.  R.  6  Eq.  5S0. 

28  Lewin,  Trusts,  p.  44. 


172  PROPERTY    IN    EQUITY — TRUSTS.  [Ch.  8 

and,  as  a  legal  estate  can  be  conveyed  or  devised  only  to 
a  definite  grantee  or  devisee,  so  the  cestui  que  trust  must 
likewise  be  certain  and  definite. 

-  unnecessary  to  add  anything  to  the  black-letter  text  as  to  the 
classes  of  persons  capable  of  becoming  cestuis  que  trustent.  It 
should  be  borne  in  mind,  however,  that  no  valid  private  trust  can 
be  created  unless  there  is  a  certain  and  definite  beneficiary.  "If 
there  is  a  single  postulate  of  common  law  established  by  an  un- 
broken line  of  decision,  it  is  that  a  trust  without  a  certain  benefi- 
ciary who  can  claim  its  enforcement  is  void."27  Thus,  a  trust  for 
the  benefit  of  "near  relations"  has  been  considered  too  indefinite  to 
create  a  trust28  The  cestui  que  trust  need  not,  however,  be  de- 
scribed  by  name;  any  other  designation  or  description  by  which  he 
may  be  identified  is  sufficient.29 

SAME— WHAT    PROPERTY    SUBJECT    TO    TRUST. 

111.  As  a  general  rule,  all  property,  whether  real  or 
personal,  and  whether  legal  or  equitable,  may  be  made 
the  subject  of  a  trust.30 

All  property  which  is  assignable  either  at  law  or  in  equity,  real 
or  personal,  may  be  transferred  in  trust,  including  choses  in  action,31 
growing  crops,32  patent  rights,33  etc.  As  to  foreign  lands,  the  rule 
is  that  they  are  governed  by  the  law  of  the  state  or  country  where 
located,  and  therefore  an  express  trust  in  foreign  lands  will  not  be 
enforced.34 

SAME— CREATION    OF    TRUST. 

112.  At  common  law  a  trust  could  be  declared  by  parol, 
but  the  statute  of  frauds,35   requires   trusts  in   real  prop- 

27  Per  Wright,  J.,  in  Levy  v.  Levy,  33  N.  Y.  97,  107. 
23  Sale  v.  Moore,  1  Sim.  534. 

29  Holmes  v.  Mead,  52  N.  Y.  332,  343. 

30  Lewin,  Trusts,  p.  47. 

si  Row  v.  Dawson,  1  Ves.  Sr.  332. 

32  Kobinson  v.  Mauldin,  11  Ala.  077;  McCarty  v.  Blevlns,  5  Yerg.  195. 

33  Russell's  Patent,  2  De  Gex  &  J.  130. 

34  Lewin,  Trusts,  p.  49. 
ss  29  Car.  II.  c.  3,  §  7. 


Ch.   8]  EXPRESS    PRIVATE    TRUSTS.  173 

erty   to   be    manifested    by   some   -writing,  signed  by    the 
party  declaring  the  trust,  or  by  his  -will  in  writing. 

Since  the  statute  relates  only  to  trusts  in  real  estate,  trusts  in 
personal  property  may  still  be  created  by  parol.36  Chattels  real  are, 
however,  within  the  statute,  and  a  trust  of  them  must  be  evidenced 
by  writing,  as  in  the  case  of  freeholds.37  With  respect  to  trusts  in 
real  estate,  the  first  point  to  be  noticed  is  that  the  statute  does  not 
require  more  than  that  the  trust  shall  be  manifested  and  proved  by 
writing.  No  formal  writing,  such  as  a  deed,  is  required.38  Again, 
the  statute  is  satisfied  by  written  evidence  of  a  trust  which  may  not 
necessarily  have  been  originally  declared  in  writing.39  It  is  nec- 
essary, however,  that  in  such  cases  the  evidence  should  clearly  be 
shown  to  relate  to  the  subject  of  the  alleged  trust; 40  and  not  only 
the  fact  of  the  trust,  but  also  the  terms  of  it,  must  be  supported  by 
written  evidence  under  the  signature  of  thp  settlor.41  In  several 
of  the  states,  the  statute  of  frauds  requires  the  trust  to  be  "created 
or  declared  by  an  instrument  in  writing,  signed  by  the  party."  The 
same  construction  has  been  placed  on  these  words  as  on  the  origiual 
statute  of  frauds,  and  the  same  evidence  is  admissible  to  establish 
the  trust.42 

With  respect  to  wills,  statutes  in  all  the  states  require  them  to 
be  in  writing,  signed  by  the  testator,  and  attested  by  witnesses. 
Hence,  where  a  trust  appears  in  a  paper  of  a  testamentary  character, 
not  designed  to  take  effect  during  testator's  lifetime,  and  to  be  am- 

36  Gilman  v.  McArdle,  99  N.  Y.  451,  2  N.  E.  464;  Chace  v.  Chapin,  130  Mass 
128;  Hellman  v.  McWilliams,  70  Cal.  449,  11  Pac.  659;  Crissman  v.  Crissman. 
23  Mich.  218;  Danser  v.  Warwick,  33  N.  J.  Eq.  133;  Patterson  y.  Mills,  69 
Iowa,  755,  28  N.  W.  53. 

3T  Forster  v.  Hale,  3  Ves.  696. 

ss  Perry,  Trusts,  §  82. 

89  Forster  v.  Hale,  3  Ves.  696;  Safford  v.  Rantoul,  12  Pick.  233;  Whelan  v. 
Whelan,  3  Cow.  537. 

40  Forster  v.  Hale,  3  Ves.  696;  Arms  v.  Ashley,  4  Pick.  71. 

«  Smith  v.  Matthews,  3  De  Gex,  F.  &  J.  139;  Steere  v.  Steere,  5  Johns.  Ch. 
1;  Dyer's  Appeal,  107  Pa.  St.  446. 

42  Perry,  Trusts,  §  81;  Urann  v.  Coates,  109  Mass.  585;  Cook  v.  Barr,  44 
N.  Y.  159;  McClellan  v.  McClellan,  65  Me.  504. 


17  1  PROPERTY    IN    EQUITY — TRUSTS.  [Ch.  8 

bulatory  until  his  death,  the  writing  must  be  executed  with  all  the 
formalities  of  a  will,  or  the  trust  will  be  inoperative.43 

Lastly,  it  should  be  noted  that  resulting  and  constructive  trusts 
are  not  within  the  statute,  and  may  be  proved  by  parol.44 

SAME— WORDS    ESSENTIAL    TO    CREATE    TRUST. 

113.  Any  language  will  suffice  if  it  can  be  gathered 
therefrom  that  a  trust  -was  intended,  provided  that  the 
person  to  be  benefited,  the  property,  and  the  way  it  is  to 
be  disposed  of  are  clearly  indicated.45 

The  word  "trust"  is,  of  course,  the  proper  word  to  use  in  creating 
a  trust;  but  words  which  import  confidence,  direction,  proviso,  or 
condition,  and  even  words  of  recommendation  or  request  (at  all  events 
in  a  will),  may  be  construed  to  evince  an  intention  to  create  a  trust, 
unless  accompanied  by  other  words  which  indicate  an  intention  that 
the  first  taker  should  have  a  discretionary  power  over  the  subject, 
or  that  the  donor  did  not  intend  the  wish  to  be  imperative.48  The 
plainest  case  of  a  trust  occurs  where  property  is  conveyed  or  devised 
to  A.  in  trust  for  B.  But  the  word  "trust"  need  not  be  used.  Thus, 
a  devise  of  land  to  A.,  with  a  proviso  that  B.  shall  have  a  home  and: 
support  thereon,  is  construed  to  impose  a  trust  on  A.  to  maintain  B. 
on  the  land.*1  So,  if  A.  devises  land  to  B.,  "he  paying  testator's 
debts,"  the  proviso  or  condition  is  construed  to  impose  a  trust  on  B. 
to  pay  those  debts.48  Aj^ain,  if  testator  bequeaths  or  devises  prop- 
erty to  A.,  and  states  that  he  "requests" 49  or  'mas  confidence" 80  or 
"wishes  and  desires"81  that  it  be  applied  for  the  benefit  of  B.,  A. 

«s  Lewin,  Trusts,  p.  59;  Perry,  Trusts,  §  93. 

"  See  post,  195. 

«  Knight  v.  Knight,  3  Beav.  148,  172. 

46  Howorth  v.  Dewell,  29  Beav.  18;   Benson  v.  Whittam,  5  Sim.  22. 

*?  Lyon  v.  Lyon,  G5  N.  Y.  339;   Estate  of  Goodrich,  38  Wis.  492. 

«  Wright  v.  Wilkin,  2  Best  &  S.  232.  See,  also,  Stanley  v.  Colt,  5  Wall. 
119;   Sohier  v.  Trinity  Clnirch,  109  Mass.  1. 

49  Knox  v.  Knox,  59  Wis.  172,  18  N.  W.  155. 

so  Dresser  v.  Dresser,  4G  Me.  48;  Warner  v.  Bates,  98  Mass.  274. 

si  Cockrell  v.  Armstrong,  31  Ark.  5S0;  Reid's  Adm'r  v.  Blackstone,  14  Grat. 
303. 


Ch.   S]  EXPRESS    PRIVATE    TRUSTS.  175 

will  be  regarded  in  equity  as  a  mere  trustee  for  B.,  since  testator's 
words  evince  an  intention  that  A.  should  not  keep  the  property 
beneficially. 

Precatory  Trusts. 

Trusts  thus  created  by  words  of  request,  prayer,  or  recommenda- 
tion are  called  "precatory  trusts";  and  it  is  always  difficult  to  say 
whether  such  words  do  or  do  not  create  a  trust  enforceable  in 
equity.  In  modern  decisions  the  leaning  of  the  courts  is  against 
the  establishment  of  precatory  trusts.  Thus,  where  a  gift  was  to 
testator's  widow,  to  be  "at  her  disposal  in  any  way  she  might  think 
best  for  the  benefit  of  herself  and  family,"  it  was  held  that  the 
widow  took  absolutely.  In  this  case  Lord  Justice  James  said :  "In 
hearing  case  after  case  cited,  I  could  not  help  feeling  that  the  offi- 
cious kindness  of  the  court  of  chancery  in  interposing  trusts  where 
in  many  cases  the  father  of  the  family  never  meant  to  create  trusts 
must  have  been  a  very  cruel  kindness,  indeed.  I  am  satisfied  that 
testator  in  this  case  would  have  been  shocked  to  think  that  any  per- 
son calling  himself  a  next  friend  could  file  a  bill  in  this  court,  and, 
under  the  pretense  of  benefiting  the  children,  have  taken  the  admin- 
istration of  the  estate  from  the  wife." B2  The  modern  rule  is  not  to 
rely  on  the  mere  use  of  any  particular  words,  but  to  look  at  them 
in  the  light  of  the  whole  will,  and  thus  ascertain  the  true  intention 
of  the  testator." 

SAME— CONSIDERATION  TO  SUPPORT  TRUST— VOLUNTARY 

SETTLEMENTS. 

114.  Unlike  a  contract,  a  trust  requires  no  consideration 
to  sustain  it;  but,  where  the  trust  is  purely  voluntary, 
the  question  -whether  it  will  be  enforced  depends  on 
whether  it  is  perfectly  created.  If  it  is  not  perfectly 
created, — that  is,  if  there  is  a  mere  intention  of  creating  a 
trust,  or  a  mere  voluntary  agreement  to   do   so,  and  the 

62  Lambe  v.  Eames,  6  Ch.  App.  597. 

53  in  re  Adams  and  Kensington  Vestry,  27  Ch.  Div.  394;  Colton  v.  Colton, 
127  U.  S.  300,  8  Sup.  Ct.  1164;  Foose  v.  Whitraore,  82  N.  Y.  405;  Phillips  v. 
Phillips,  112  N.  Y.  197,  19  N.  E.  411;  Elliott  v.  Elliott,  117  Ind.  380,  20  N.  E. 
264;  Mills  v.  Newberry,  112  111.  123;  Hess  v.  Singler,  114  Mass.  56,  59. 


17G  PUOPERTY    IN    EQUITY — rRUSTS.  [Ch.   8 

settlor  himself  contemplates  some  further  act  for  the  pur- 
pose of  giving  it  completion, — a  voluntary  trust  will  not 
be  enforced  or  aided  in  equity. 

Where  there  is  a  valuable  consideration,  and  a  trust  is  intended  to 
be  created,  formalities  are  of  minor  importance;  for  equity  regards 
the  substance,  and  not  the  form,  and,  considering  that  as  done  which 
ought  to  be  done,  will  carry  into  effect  a  trust,  if  value  has  been 
given,  however  rudely  created.54  Thus,  a  deed  of  trust,  based  on 
value,  which  omits  the  trustee's  name,  will  be  reformed,  and  a  proper 
trustee  appointed,  and  his  name  inserted.55  The  same  principle  ap- 
plies to  wills,  where  a  consideration  is  implied.58  For  instance, 
where  a  testator  directs  a  sale  of  his  real  estate,  and  a  distribution 
of  the  proceeds  among  certain  persons,  but  fails  to  appoint  a  trustee 
to  make  the  sale  and  the  distribution,  the  land  will  descend  to  the 
In  ir:  but  he  will  be  regarded  in  equity  as  the  trustee,  and  the 
trust  will  be  enforced  as  against  him.57 

Voluntary  Settlements. 

But  where  the  trust  is  voluntary,  and  not  created  by  will,  the 
form  of  the  transaction  becomes  of  the  utmost  importance.  The 
question  then  comes  to  this:  Has  the  donor  created  a  perfect  trust, 
or  has  he  merely  agreed  or  evinced  an  intention  to  create  one?  If 
the  declaration  of  trust  is  perfect  and  complete,  equity  will  enforce 
it,  though  there  is  no  consideration,  since  a  man  may  divest  himself 
of  his  property  rights  by  gift.58     If,  however,  the  trust  is  not  thus 

54  Lewin,  Trusts,  p.  07;   Underh.  Eq.  p.  40. 

55  Burnside  v.  Way  man,  49  Mo.  350. 
so  Lewin,  Trusts,  130. 

57  Lewin,  Trusts,  141. 

58  In  Richards  v.  Delbridge,  L.  R.  18  Eq.  11,  13.  Sir  George  Jessel,  M.  R., 
said:  "The  principle  is  a  very  simple  one.  A  man  may  transfer  his  property 
without  valuable  consideration  in  one  of  two  ways:  He  may  either  do  such 
acts  as  amount  in  law  to  a  conveyance  or  assignment  of  the  property,  and 
thus  completely  divest  himself  of  the  legal  ownership,  in  which  case  the 
person  who  by  those  acts  acquires  the  property  takes  it  beneficially  or  on 
trust,  as  the  case  may  be;  or  the  legal  owner  of  the  property  may,  by  one 
or  other  of  the  modes  recognized  as  amounting  to  a  valid  declaration  of 
trust,  constitute  himself  a  trustee,  and,  without  an  actual  transfer  of  the 
legal  title,  may  so  deal  wilh  the  property  as  to  deprive  himself  of  its  legal 
ownership,  and  declare  that  he  will  hold  it  from  that  time  forward  on  trust 


Ch.   8]-  EXPRESS    PRIVATE    TRUSTS.  177 

perfected  and  complete,  if  there  is  a  mere  voluntary  agreement,  or 
an  unfulfilled  intention  to  create  a  trust,  then  equity  will  not  enforce 
it,  for  an  intention  to  make  a  gift  is  nudum  pactum,  and  of  no  binding 
force  either  at  law  or  in  equity.69  The  question  whether  or  not  a 
voluntary  trust  has  been  perfectly  created  will,  perhaps,  be  more 
easily  comprehended  if  we  consider,  first,  those  cases  where  the  donor 
proposes  to  convert  himself  into  a  trustee,  and,  secondly,  those  cases 
where  he  proposes  to  make  a  stranger  trustee. 

1.  If  the  settlor  proposes  to  convert  himself  into  a  trustee,  then 
the  trust  is  perfectly  created,  and  will  be  enforced,  so  soon  as  the  set- 
tlor has  executed  an  express  declaration  of  trust,  intended  to  be  final 
and  binding  on  him ;  and  in  this  case  it  is  immaterial  whether  the 
nature  of  the  property  is  legal  or  equitable,  or  whether  it  be  capable 
or  incapable  of  transfer.60     Thus,  where  one  deposits  money  in  bank 

for  the  other  person."  In  Estate  of  Webb,  49  Cal.  541,  545,  Crockett,  J.,  said: 
"In  such  cases  the  point  to  be  determined  is  whether  the  trust  has  been  per- 
fectly created,— that  is  to  say,  whether  the  title  has  passed  and  the  trust 
been  declared;  and,  the  trust  being  executed,  nothing  remains  for  the  court 
but  to  enforce  it."     See,  also,  Milroy  v.  Lord,  4  De  Gex,  P.  &  J.  264,  274. 

59  See  cases  cited  in  note  58.  In  Martin  v.  Funk,  75  N.  Y.  134,  137,  Church, 
C.  J.,  says:  "It  is  clear  that  a  person  sui  juris,  acting  freely  and  with  full 
knowledge,  has  the  power  to  make  a  voluntary  gift  of  the  whole  or  any  part 
of  his  property,  while  it  is  well  settled  that  a  mere  intention,  whether  ex- 
pressed or  not,  is  not  sufficient,  and  a  voluntary  promise  to  make  a  gift  is 
nudum  pactum,  and  of  no  binding  force.  The  act  constituting  the  transfer 
must  be  consummated,  and  not  remain  incomplete,  or  not  in  mere  intention; 
and  this  is  the  rule,  whether  the  gift  is  by  delivery  only,  or  by  the  creation 
of  a  trust  in  a  third  person,  or  in  creating  the  donor  himself  a  trustee."  In 
Stone  v.  Hackett,  12  Gray  (Mass.)  227,  it  was  said:  "It  is  certainly  true  that  a 
court  of  equity  will  lend  no  assistance  towards  perfecting  a  voluntary  con- 
tract or  agreement  for  the  creation  of  a  trust,  nor  regard  it  as  binding  so  long 
as  it  remains  executory.  But  it  is  equally  true  that  if  such  a  contract  be  exe- 
cuted by  a.  conveyance  of  property  in  trust,  so  that  nothing  remains  to  be  done 
by  the  grantor  or  donor  to  complete  the  transfer  of  title,  the  relation  of  trustee 
and  cestui  que  trust  is  deemed  to  be  established,  and  the  equitable  rights  and 
interests,  arising  out  of  the  conveyance,  though  made  without  consideration,, 
will  bo  enforced  in  chancery."  See,  also,  on  the  general  subject,  Allen  v.. 
Withrow,  110  U.  S.  130,  3  Sup.  Ct.  517;  Beaver  v.  Beaver,  117  N.  Y.  421,  22 
N.  E.  940;  Keyes  v.  Carleton,  141  Mass.  49,  6  N.  E.  524;  Hellman  v.  Mc Wil- 
liams, 70  Cal.  449,  11  Pac.  659. 

eo  Ex  parte  Pye,  18  Ves.  140;  Crawford's  Appeal,  61  Pa.  St.  52;  Dickerson's 
Appeal,  115  Pa.  St.  198,  8  Atl.  64. 

KQ.JUR. — 12 


PROPERTY  IN  EQUITY — TRUSTS.  [Ch.  S 

in  )  rust  for  another,  and  the  account  is  so  entered  in  the  books  of  the 
bank,  and  in  the  pass  book  delivered  to  the  depositor,  a  perfect  trust 
is  created,  which  will  be  enforced,  though  the  cestui  que  trust  was 
ignorant  of  the  deposit  until  after  the  depositor's  death,  who  retained 
ssion  of  the  pass  book  during  his  lifetime.81 
Care  must,  however,  be  taken  to  distinguish  this  class  of  cases 
from  those  where  the  donor  attempts  to  make  an  outright  gift  of 
property  by  transferring  the  legal  title  directly  to  the  donee,  and  the 
gift  proves  to  be  ineffective,  because  all  acts  requisite  to  the  passing 
of  title  have  not  been  performed  by  the  donor,  such  as  the  execution 
and  delivery  of  a  valid  deed  in  case  of  real  property,  and  the  execu- 
tion of  a  valid  assignment  and  delivery  of  possession  in  the  case  of 
personal  property.  "It  is  established  as  unquestionable  law  that  a 
court  of  equity  cannot,  by  its  authority,  render  that  gift  perfect 
\\  hich  the  donor  has  left  imperfect,  and  cannot  convert  an  imperfect 
gift  into  a  declaration  of  trust,  merely  on  account  of  that  imperfec- 
tion."62 Thus,  whore  an  intended  gift  of  bonds  proves  ineffectual 
because  the  donor  retains  possession  for  the  purpose  of  collecting  the 
interest  during  his  lifetime,  the  transaction  cannot  be  sustained  as 
a  declaration  of  trust,  though  the  intention  to  make  the  gift  is 
clearly  manifested.63  So,  where  the  payee  of  promissory  notes  states 
to  his  nephew.  <rT  will  give  you  these  notes,"  and  indorses  them,  "I 
bequeath, — pay  the  within  contents  to  [the  nephew]  or  his  order, 
at  my  death,"  but  does  not  deliver  the  possession,  and  retains  them 
in  his  custody  until  his  death,  the  nephew  obtains  no  right  in  the 
notes.64  In  Richards  v.  Delbridge.65  Jessel,  M.  R,  said:  "The  true 
•  listinction  appears  to  me  to  be  plain  and  beyond  dispute.  For  a 
man  to  make  himself  a  trustee,  there  must  be  an  expression  of  inten- 

ei  Martin  v.  Funk,  75  N.  Y.  134.  For  similar  cases  of  trusts  in  savings 
bank  deposits,  see  Minor  v.  Rogers,  40  Conn.  512;  Ray  v.  Simmons,  11  R.  1. 
266;  Willis  v.  Smyth,  91  N.  Y.  297.  A  contrary  rule  seems  to  prevail  in 
Massachusetts  as  to  such  deposits.  Brabrook  v.  Bank,  104  Mass.  228;  Clark 
v.  Clark,  108  Mass.  522. 

oung  v.  Young,  80  X.  Y.  422,  437,  per  Rapalto,  J.     See,  to  same  effect, 
Jones  v.  Lock,  1  Ch.  A.pp.  2.",;  Milroy  v.  Lord,  4  De  Gex,  F.  &  J.  2G4;   Richards 
v.  D«  (bridge,  L.  R.  18  Eq.  11;  Beaver  v.  Beaver,  117  N.  Y.  421,  22  N.  E.  940. 
»ung  v.  Young,  so  \.  y.  422. 
64  Mitchell  v.  Smith,  4  De  Gex,  .1.  &  S.  422. 
.   R.  is  Eq.  11.  i::. 


Ch.   8]  EXPRESS    PRIVATE    TRUSTS.  179 

tion  to  become  a  trustee;  whereas  words  of  present  gift  show  an 
intention  to  give  over  property  to  another,  and  not  to  retain  it  in 
the  donor's  hands  for  any  purpose,  fiduciary  or  otherwise." 

2.  Turning  now  to  the  cases  where  the  donor  proposes  to  make  a 
stranger  the  trustee,  our  inquiry  will  again  be  facilitated  if  we  con- 
sider, first,  those  cases  where  the  donor  has  the  legal  title  to  the 
property,  and,  second,  those  where  he  has  only  an  equitable  interest 
therein. 

First.  If  the  subject  of  the  trust  is  the  legal  interest,  and  assigna- 
ble at  law,  such  as  land  or  chattels,  money  or  choses  in  action,  the 
trust  is  not  perfectly  created  unless  the  legal  interest  be  actually 
vested  in  the  trustee.  It  is  not  enough  that  the  settlor  executed  a 
deed  affecting  to  pass  it,  and  that  he  believed  nothing  to  be  want- 
ing to  give  effect  to  the  transaction.  The  intention  of  divesting 
himself  of  the  legal  property  must  in  fact  be  executed,  or  the  court 
will  not  recognize  the  trust.66  In  the  comparatively  unimportant 
class  of  cases  where  the  legal  title  is  not  assignable,  the  rule  is  that 
if  the  settlor  makes  all  the  assignment  of  the  property  in  his  r^wer, 
and  perfects  the  transaction  as  far  as  the  law  permits,  equity  will 
recognize  the  act,  and  support  the  validity  of  the  trust.67 

Second.  If  the  subject  of  the  trust  be  an  equitable  interest,  then 
it  is  not  necessary  that  the  legal  title  be  assigned  to  the  trustee, 
but  it  is  sufficient  if  the  equitable  interest  merely  is  so  assigned.68 

SAME— THE  OBJECT  PROPOSED  BY  THE  TRUST. 

115.  Equity  will  not  permit  the  system  of  trusts  to  be 
directed  to  any  object  that  contravenes  the  policy  of  the 

es  Lewin,  Trusts,  p.  70;  Ellison  v.  Ellison,  6  Ves.  662;  Garrard  v.  Lauderdale, 
2  Russ.  &  M.  452. 

67  Kekewicb  v.  Manning,  1  De  Gex,  M.  &  G.  187,  188.  In  this  case,  Lord 
Justice  Knight  Bruce  observed:  "It  is  upon  legal  and  equitable  principles, 
we  apprehend,  clear,  that  a  person  sui  juris,  acting  truly  and  fairly  and  with 
sufficient  knowledge,  ought  to  have  and  has  it  in  his  power  to  make,  in  a 
binding  and  effectual  manner,  a  voluntary  gift  of  any  part  of  his  property, 
whether  capable  or  incapable  of  manual  delivery,  whether  in  possession  or 
in  reversion,  or  howsoever  circumstanced." 

68  Lewin,  Trusts,  p.  72;  Sloane  v.  Cadogan,  Sugd.  Vend.  Append.;  Kekewicb 
v.  Manning,  1  De  Gex,  M.  &  G.  188. 


1^0  PBOPERTY    IN    EQUITY TRUSTS.  [Ch.  8 

law;"9  and,  where  a  trust  is  created  for  an  unlawful  or 
fraudulent  purpose,  equity  will  neither  enforce  the  trust 
in  favor  of  the  parties  to  be  benefited  nor  will  it  assist  the 
settlor  to  recover  the  estate.70 

In  the  foregoing  pages  we  have  considered  what  parties,  what 
language,  and  what  consideration  is  necessary  to  the  creation  of  an 
express  innate  trust,  and  also  what  property  may  be  impressed  with 
such  a  i lust.  One  further  question  remains  to  be  considered  before 
we  can  be  sure  that  the  trust  is  valid,  and  that  is,  is  the  object 
of  the  trust  legal  or  illegal?  For  equity  will  not  sustain  a  trust 
that  contravenes  the  policy  of  the  law.  Thus,  a  settlement  of  prop- 
erty in  trust  for  illegitimate  children  to  be  thereafter  born  is  void, 
since  this  tends  to  immorality.71  So,  where  the  entire  benel'nial 
ownership  of  property  is  vested  in  a  cestui  que  trust,  a  proviso 
that  it  shall  not  be  alienated  or  subjected  to  the  claims  of  his  cred- 
itors is  void ;  but  a  trust  of  the  income  of  property,  to  cease  on  the 
insolvency  or  bankruptcy  of  the  cestui  que  trust,  is  valid.72      At 

«9  Lewin,  Trusts,  p.  94;  Attorney  General  v.  Pearson,  3  Mer.  399;  Lemmond' 
v.  Peoples,  C  Irea.  Eq.  (N.  C.)  137. 

to  Cottington  v.  Fletcher,  2  Atk.  155;  Muckleston  v.  Brown,  G  Yes.  68:  Ford 
v.  Lewis,  10  B.  Mon.  127.  The  authorities  are  not  uniform  as  to  whether 
or  not  equity  will  interfere  where  the  object  of  the  trust  is  illegal  and  fraudu- 
lent. Thus,  in  Lemmond  v.  Peoples,  G  Ired.  Eq.  (N.  C.)  137,  a  conveyance  of 
slaves  In  trust  to  emancipate  them  was  held  a  violation  of  the  laws  of  the 
state,  and  a  trust  was  therefore  declared  to  result  in  favor  of  the  settlor.  In 
Ownes  v.  Ownes.  2.".  X.  J.  Eq.  GO.  land  had  been  conveyed  in  trust  to  reconvey 
to  the  settlor  or  any  person  whom  she  should  appoint.  The  object  of  the 
conveyance  was  to  defraud  the  settlor's  creditors.  On  a  bill  by  the  settlor 
to  compel  a  reconveyance  of  the  legal  estate  by  the  trustee,  it  was  held  that 
the  maxim  "in  pari  delicto,"  etc.,  did  not  apply,  because  the  equitable  estate 
was  actually  vested  in  the  settlor,  and  the  case  was  therefore  on  the  same 
footing  as  if  the  legal  estate  had  already  been  reconveyed.  It  would  seem 
that  in  all  such  cases  the  maxim  "He  who  comes  into  equity  must  come 
with  clean  hands"  ought  to  apply.     See  post,  192. 

7i  Medworth  v.  Pope,  27  Beav.  71;  Occleston  v.  Fullalove,  9  Ch.  App.  147. 

72  Snowdon  v.  Dales,  G  Sim.  524;  Green  v.  Spicer,  1  Russ.  &  M.  395;  Black- 
stone  Bank  v.  Davis,  21  Pick.  43;  Sparhawk  v.  Cloo.n,  125  Mass.  2G3;  Bramhall 
v.  Ferris,  11  X.  Y.  41;  Nichols  v.  Eaton.  01  U.  S.  71G;  Shankland's 
Appeal,  47  Pa.  St.  113;   Keyser's  Appeal,  57  Pa.  St.  23G;  In  re  Barker's  Estate. 


Ch.  8]  EXPRESS    PRIVATE    TRUSTS.  181 

common  law  it  was  not  permissible  for  the  holder  of  the  fee-simple 
title  to  fetter  the  alienation  of  the  estate  for  a  longer  period  than 
a  life  or  lives  in  being  at  the  date  of  the  conveyance,  and  for  21 
years  and  9  months  thereafter.  This  rule,  which  is  known  as  the 
rule  against  perpetuities,  applies  with  equal  force  to  the  limitation 
of  trust  estates.73  Independent  of  statute,  the  same  rule  applies  to 
accumulations  of  the  rents  and  profits  of  an  estate;  that  is,  the  set- 
tlor may  direct  them  to  be  accumulated  during  a  period  limited  by 
a  life  or  lives  in  being  and  21  years  and  a  fraction  thereafter.  It  was 
found,  however,  that,  under  this  rule,  accumulations  might  continue 
for  75  or  100  years,  and  thus  create  enormous  fortunes.74  A  stat- 
ute was  therefore  enacted  in  the  reign  of  George  III.  (St.  39  &  40 
Geo.  III.  c.  98)  commonly  known  as  the  "Thelusson  Act,"  which  still 
further  restricted  the  period  of  accumulation  by  limiting  it  (1)  to 
the  life  of  the  settlor;  or  (2)  to  twenty-one  years  from  his  death; 
or  (3)  during  the  minority  of  any  person  or  persons  living  at  his 
death;  or  (4)  during  the  minority  of  any  person  or  persons  who  would 
be  entitled,  if  of  full  age,  to  take  the  rents  and  profits  directed  to  be 
accumulated. 

Legislation  in  New  York  and  Other  States. 

In  conclusion  it  should  be  observed  that  statutes  in  many  of  the 
states  have  greatly  restricted  the  objects  for  which  trusts  may  be 
created.     Thus,  statutes  in  New  York,75  substantially  re-enacted  in 

ir,9  Pa.  St.  518,  28  Atl.  3G5,  368.  See,  however.  Roberts  v.  Stevens,  84  Me. 
32.",.  24  Atl.  873. 

-'■■  Duke  of  Norfolk's  Case,  3  Ch.  Cas.  20,  28,  35;  Schettler  v.  Smith,  41  N. 
Y.  329;  Lovering  v.  Worthington,  106  Mass.  86;  Barnuui  v.  Barnum,  26  Md. 
119. 

^  Thellusson  v.  Woodford,  4  Ves.  227,  11  Ves.  112.  In  this  case  testator 
directed  his  entire  estate,  real  and  personal,  to  be  converted  into  one  common 
fund,  to  be  vested  in  trustees  in  fee.  The  rents  and  profits  were  to  accumu* 
late  during  the  lives  of  all  testator's  sons  and  grandsons  born  in  testator's 
lifetime,  or  living  at  his  death,  or  in  ventre  sa  mere,  and  thus  be  added  to  the 
principal.  The  property,  which  amounted  to  about  £500,000,  was  thus  tied  up 
from  alienation  and  from  enjoyment  during  three  generations,  with  the  ex- 
pectation that  at  the  end  of  that  perioa  it  would  amount  to  an  enormous  for- 
tune. 

«  1  Rev.  St.  pt.  2,  tit  2,  c.  1,  art.  2,  §  55. 


182  PROPERTY    IN    EQUITY — TRTJ8T8.  [Cli.  8 

Michigan,™  Wisconsin,"  Minnesota,™  California,™  and  the  Dakotas,80 
prohibit  the  creation  of  express  trusts,  except  for  the  following  pur- 
di  To  sell  land  for  the  benefit  of  creditors;  (2)  to  sell, 
mortgage,  <t  lease  land  for  the  benefit  of  legatees,  or  for  the  purpose 
of  satisfying  any  charge  thereon;  (3)  to  receive  the  rents  and  profits 
of  lands,  and  apply  them  to  the  use  of  any  person  during  the  life  of 
such  person,  or  for  any  shorter  term,  subject  to  the  rules  prescribed 
for  the  creation  of  legal  estates;  (4)  to  receive  the  rents  and  profits 
of  lands,  and  to  accumulate  the  same  for  the  benefit  of  minors  then 
in  being,  and  during  their  minority.  Where  a  trust  is  created  for 
any  other  purpose,  no  estate  vests  in  the  trustee;  but  a  trust,  if 
directing  or  authorizing  the  performance  of  any  act  which  may  be 
lawfully  performed  under  a  power,  is  valid  as  a  power  in  trust.81 
The  statutes,  however,  apply  only  to  real  estate,  and  trusts  in  per- 
sonal property  are  not  affected  thereby.82 

SAME— INTERPRETATION    OF    TRUSTS. 

116.  For  the  purposes  of  interpretation,  express  private 
trusts  are  divided  into: 

(a)  Executed  trusts. 

(b)  Executory  trusts. 

117.  A  trust  is  said  to  be  executed  when  its  terms  are 
completely  and  perfectly  declared  by  the  instrument  cre- 
ating it,  and  no  further  act  is  required  to  give  it  effect. 

118.  A  trust  is  said  to  be  executory  when  the  scheme  is 
imperfectly  created  at  the  outset,  and  the  settlor  has 
merely  denoted  Ms  ultimate  object,  imposing  on  the  trus- 
tee or  on  the  court  the  duty  of  effectuating  it  in  the  most 
convenient  way. 

"  2  How.  Ann.  St.  1SS3,  c.  214,  §  11. 

«  1  Sanb.  &  B.  Ann,  St.  1SS9,  §  2081. 

™  Gen.  St.  1878,  p.  553,  §  11. 

"  Civ.  Code,  §  S5T. 

so  Civ.  Code  18S0,  p.  243,  §  282. 

si  1  Rev.  St.  N.  Y.  pt.  2,  c.  1,  §  58. 

82  Gilinan  v.  McArdle,  00  N.  Y.  451,  2  N.  E.  464. 


Ch.  8]  EXPRESS    PRIVATE    TRUSTS.  183 

119.  In  executed  trusts,  a  court  of  equity  will  construe 
technical  terms  in  the  same  manner  as  a  court  of  law 
would  construe  them  when  applied  to  legal  estates.  In 
executory  trusts,  a  court  of  equity  does  not  consider  it- 
self bound  to  construe  technical  expressions  with  the  same 
legal  strictness;  and  if,  from  the  nature  of  the  instrument 
or  from  the  circumstances  of  the  case,  a  contrary  inten- 
tion of  the  settlor  of  the  trust  can  be  ascertained,  the 
court  will,  in  supplying  or  directing  the  further  acts  nec- 
essary for  the  execution  of  the  trusts,  mold  them  accord- 
ing to  such  intention. 

"All  trusts,"  observed  Lord  St.  Leonards,  "are  in  a  sense  executory, 
because  there  is  always  something  to  be  done.  But  that  is  not 
the  sense  which  a  court  of  equity  puts  upon  the  term  'executory 
trust.'  A  court  of  equity,  in  considering  an  executory  trust,  as 
distinguished  from  an  executed  trust,  distinguishes  the  two  in  this 
manner:  Has  the  testator  been  what  is  called,  and  very  properly 
called,  his  own  conveyancer?  Or  has  he,  on  the  other  hand,  left 
it  to  the  court  to  make  out  from  general  expressions  what  his  inten- 
tion is?  If  he  has  so  defined  that  intention  that  you  have  nothing 
to  do  but  to  take  the  limitations  he  has  given  you,  and  to  convert 
them  into  legal  estates,  then  the  trust  is  executed,  but  otherwise  it 
is  executory." 83  The  student  will  observe  that  the  distinction  be- 
tween an  executed  and  an  executory  trust  approximates  very  closely 
to  the  distinction  between  a  perfectly  created  voluntary  trust,  which 
a  court  of  equity  will  enforce,  and  an  imperfectly  created  voluntary 
trust,  which  it  will  refuse  to  enforce.84 

The  distinction  between  the  interpretation  of  executed  and  ex- 
ecutory trusts  is  said  to  be  traceable  to  a  desire  to  obviate  the  con- 
sequences of  the  extremely  technical  doctrine  known  as  the  "Rule 
in  Shelley's  Case." 85  Cases  arising  under  marriage  settlements 
offer  very  good  illustrations  of  the  distinction  in  the  interpretation 
of  executed  and  executory  trusts.  An  actual  conveyance  to  trustees 
in  trust  for  the  intended  husband  for  life,  with  remainder  in  trust 

»3  Egerton  v.  Brownlow,  4  H.  L.  Cas.  3,  10. 

s*  Ante,  176. 

85  West  v.  Holmesdale,  L.  R.  4  H.  L.  545,  553,  per  Lord  Hatherly. 


IS  I  PROPERTY    IN    EQUITY fRUSTS.  [Oh.   8 

for  the  heirs  of  his  body,  is  an  executed  trust;  and  the  technic.il 
terms  therein  will  be  given  their  technical  meaning,  with  the  result 
that,  under  the  rule  in  Shelley's  Case,  the  intended  husband  takes, 
not  an  equitable  life  estate,  but  an  equitable  fee  tail.88  "When,  how- 
ever, there  is  a  mere  covenant  in  marriage  articles  to  settle  an  estate 
in  trust  for  the  intended  husband  for  life,  with  remainder  in  trust 
for  the  heirs  of  his  body,  a  court  of  equity,  regarding  that  as  an  ex- 
ecutory trust,  will  not  construe  it  strictly,  but  will  order  the  settle- 
ment to  be  prepared,  giving  the  husband  a  life  estate  only,  with 
remainder  to  his  first  and  other  sons  in  tail  male,  on  the  ground 
thai  thai  was  the  obvious  intention  of  the  parties.87  The  same  prin- 
ciples of  construction  apply  to  wills,  except  that  in  executory  trusts 
created  by  marriage  articles  equity  will  presume  an  intention  to 
provide  for  the  offspring  of  the  marriage,  while  in  executory  trusts 
created  by  wills  there  must  be  some  affirmative  showing  that  the 
rule  in  Shelley's  Case  was  not  intended  to  apply.88  The  abrogation 
of  the  rule  in  Shelley's  Case  in  many  of  the  states  renders  the  appli- 
cation of  these  principles  rather  infrequent  with  us. 

SAME— NATURE    OF    CESTUI    QUE    TRUST'S    ESTATE. 

120.  To  determine  the  nature  of  the  cestui  que  trust's 
estate,  express  private  trusts  are  classified  as: 

(a)  Passive  or  simple  trusts. 

(b)  Active  or  special  trusts, 

SAME— PASSIVE    TRUSTS. 

121.  A  passive  or  simple  trust  is  one  in  -which  the  prop- 
erty is  vested  in  a  trustee  to  whose  office  no  duties  were 

86  Wright  v.  Pearson,  1  Eden,  119;  Austen  v.  Taylor,  Id.  3G1;  Cushlng  v. 
Blake,  30  N.  J.  Eq.  689;  Tillinghast  v.  Coggeshall.  7  R.  I.  3S3;  Carroll  v. 
Renich,  7  Smedes  &  M.  798. 

8T  Trevor  v.  Trevor,  1  P.  Wms.  622;  Streatfield  v.  Streatfield,  Cas.  t.  Talb. 
176. 

ssGlenorchy  v.  Bosvffle,  Cas.  t.  Talb.  5,  1  White  &  T.  Lead.  Cas.  Eq.  1; 
Sweetapple  v.  Bindon,  2  Vera.  536;  Papillon  v.  Voice,  2  P.  Wms.  471;  Wood 
v.  Burnham,  6  Paige,  514;  Tallinan  v.  Wood,  26  Wend.  9;  In  re  Angell,  13 
R.  I.  630. 


Ch.   8]  EXPRESS    PRIVATE    TRUSTS.  135 

originally  attached,  or,  by  the  course  of  events,  no  duties 
are  any  longer  attached.  In  such  trusts  the  cestui  que 
trust  is  considered  in  equity  as  the  absolute  owner,  and 
therefore  he  is  always  entitled  to  put  an  end  to  the  trust 
by  calling  on  the  trustee  to  convey  to  him  the  legal  es- 
tate. 

An  example  of  a  passive  or  a  simple  trust  is  a  conveyance  of 
property  to  A.  and  his  heirs  in  trust  for  B.  and  his  heirs,  for  A.  has 
no  duties  to  perform.  So,  where  property  is  conveyed  to  A.  and  his 
heirs  in  trust,  to  collect  the  rents  and  profits,  and  pay  them  over  to 
B.  during  his  lifetime,  and  on  his  death  in  trust  for  his  eldest  son 
absolutely,  the  trust  is  active  or  special  during  B.'s  lifetime,  but  on 
his  death  it  becomes  a  passive  or  simple  trust,  for  B.'s  son  is  then 
in  equity  regarded  as  the  absolute  owner. 

In  the  case  of  passive  trusts,  equity  regards  the  cestui  que  trust 
as  the  owner  of  the  property,  and  will  compel  the  trustee  to  execute 
such  conveyances  of  the  legal  estate  as  the  cestui  que  trust  may 
direct.89  He  is  also  entitled  to  the  possession  of  the  real  estate,  and 
to  the  rents  and  profits  thereof.90 

In  many  of  the  states,  passive  or  simple  trusts  in  real  estate  have 
been  abolished  by  statutes,  and  the  entire  estate,  legal  and  equita- 
ble, vests  in  the  cestui  que  trust  by  force  of  the  statute.91  Tassive 
trusts  in  personal  property  are  not,  however,  uncommon;  as  where 
nirmey  is  deposited  in  bank  by  A.  in  trust  for  B.92 

SAME— ACTIVE    OR    SPECIAL    TRUSTS. 

122.  An  active  or  special  trust  is  one  in  which  the  trus- 
tee is  charged  with  the  execution  of  some  purpose  pointed 
out  by  the  settlor,  calling  for  active  exertion  by  the  trus- 

89  Lewin,  Trusts,  p.  GS4. 

so  Brown  v.  How,  Barnard.  Ch.  354;  Attorney  General  v.  Gore,  Id.  150. 

9i  Such  statutes  exist  in  New  York,  Michigan,  Wisconsin,  Minnesota,  Cali- 
fornia, and  the  Dakotas.  See,  as  to  construction  of  these  statutes  generally, 
Farmers'  Nat.  Bank  v.  Moran,  30  Minn.  1G5,  14  N.  W.  805;  Sullivan  v.  Bruhl- 
ing,  66  Wis.  472,  29  N.  W.  211;  Syracuse  Sav.  Bank  v.  Holden,  105  N.  Y.  415, 
11  N.  E.  950;  Townshend  v.  Frommer,  125  N.  Y.  446,  26  N.  E.  805. 

92  See  ante,  177. 


186  PROPERTY    IN    EQUITY — TRUSTS.  [Ch.  8 

tee  in  the  business  and  administration  of  the  trust.  In 
such  a  trust  the  cestui  que  trust  possesses  only  the  right 
to  enforce  in  equity  the  specific  execution  of  the  settlor's 
intention  to  the  extent  of  that  cestui  que  trust's  particular 

interest.93 

At  live  or  special  trusts  may  be  created  for  any  purpose  not  pro- 
hibited by  law.04  Generally,  the  trustee  is  entitled  to  the  posses- 
sion, control,  and  management  of  the  trust  property,  and  sometimes 
to  the  right  to  sell  it.95  As  a  general  rule,  the  cestui  que  trust  has 
no  estate  in  the  property,  but  merely  the  right  to  compel  the  execu- 
tion of  the  settlor's  in!  cut  ion.  One  of  the  most  common  forms  of 
active  trusts  is  a  voluntary  assignment  by  a  failing  debtor  to  a  trus- 
tee or  assignee  in  trust  for  the  payment  of  the  assignor's  creditors. 
Another  form  quite  frequent  in  some  of  the  states  is  the  "deed  of 
trust,"  which  takes  the  place  of  a  real-estate  mortgage.  The  land, 
which  is  designed  to  stand  as  security  for  the  debt,  is  conveyed  by 
the  debtor  to  a  trustee,  who  is  directed  to  sell  the  property  on  de- 
fault of  payment  by  the  grantor,  and  out  of  the  proceeds  to  pay  the 
debt,  and  account  to  the  grantor  for  the  surplus.  Such  deeds  do 
not  differ  materially  from  mortgages  containing  a  power  of  sale,  and 
they  are  usually  considered  and  treated  as  mortgages." 

PUBLIC    OR   CHARITABLE    TRUSTS. 

123.  A  charitable  trust  has  been  defined  to  be  a  "gift, 
to  be  applied,  consistently  "with  existing  laws,  for  the  ben- 
efit of  an  indefinite  number  of  persons, — either  by  bring- 

03  Lewin,  Trusts,  p.  GS9. 

a*  In  many  of  the  states  the  purposes  for  which  active  trusts  may  be  created 
are  greatly  limited  by  statute.  But  trusts  not  within  the  statute,  If  lawful 
in  other  respects,  may  be  sustained  as  powers  in  trust.     See  ante,  181. 

»s  2  Pom.  Eq.  Jur.  §  991. 

ss  Webb  v.  Iloselton,  4  Neb.  30S;  Austin  v.  Sprague  Manuf'g  Co.,  14  R.  L 
464;  Hoffman  v.  Macall,  5  Ohio  St.  124;  Wisconsin  Cent.  R.  Co.  v.  Wisconsin 
River  Land  Co.,  71  Wis.  94,  3G  N.  W.  S37.  In  some  of  the  states,  however, 
it  is  held  that  a  trust  deed  differs  from  a  mortgage  in  that  it  conveys  the  legal 
title,  while  the  mortgage  does  not.  Partridge  v.  Shepard,  71  Cal.  470,  12  Pac. 
4S0;   Soutter  v.  Miller,  15  Fla.  625. 


Ch.   8]  PUBLIC    OR    CHARITABLE    TRUSTS.  187 

ing  their  hearts  under  the  influence  of  education  or  re- 
ligion, by  relieving  their  bodies  froni  disease,  suffering, 
or  constraint,  by  assisting  them  to  establish  themselves 
for  life,  or  by  erecting  or  maintaining  public  buildings 
or  works,  or  otherwise  lessening  the  burden  of  govern- 
ment."97 

The  objects  wbich  are  included  within  the  term  "charitable" 
were  enumerated  by  St.  43  Eliz.  c.  4,  as  follows:  "The  relief  of  aged, 
impotent,  and  poor  people;  the  maintenance  of  sick  and  maimed 
soldiers  and  mariners;  schools  of  learning  and  scholars  in  universi- 
ties; the  repair  of  bridges,  ports,  havens,  causeways,  churches,  sea- 
banks,  and  highways;  the  education  and  preferment  of  orphans; 
the  relief,  stock,  or  maintenance  of  houses  of  correction;  the  mar- 
riage of  poor  maids;  the  supportation,  aid,  and  help  of  young 
tradesmen,  handicraftsmen,  and  persons  decayed;  the  relief  or  re- 
demption of  prisoners  or  captives ;  the  aid  or  care  of  any  poor  inhabi- 
tants concerning  payment  of  fifteens,  setting  out  soldiers,  or  other 
taxes."  While  it  is  now  settled  that  this  statute  did  not  originate 
the  system  of  charitable  trusts,  and  that  it  is  merely  declaratory  of 
the  common  law,"  the  term  "charity,"  in  the  sense  in  which  it  is 
used  in  courts  of  equity,  includes  only  such  bequests  as  are  within 
the  letter  and  spirit  of  this  enumeration.09  The  tendency  has  been 
to  give  these  words  a  very  liberal  interpretation,  and  thus  they  cover 
a  very  wide  range  of  objects.  The  relief  of  aged,  impotent,  and 
poor  people  is  one  of  the  objects  mentioned  in  the  statute  of  Eliza- 
beth, and  hence  gifts  in  aid  or  support  of  the  poor,  widows,  orphans, 

97  Per  Justice  Gray  in  Jackson  v.  Phillips,  14  Allen,  556. 

98  The  researches  of  the  English  record  commissioners  have  proved  that  a 
large  number  of  cases  were  brought  in  the  court  of  chancery  before  the  enact- 
ment of  the  statute,  and  that  indefinite  charities  were  generally  sustained.  At 
one  time  an  opinion  prevailed  in  the  United  States  that  the  statute  originated 
the  equitable  jurisdiction.  Baptist  Ass'n  v.  Hart's  Ex'rs,  4  "Wheat.  1;  Gal- 
lego's  Ex'rs  v.  Attorney  General,  3  Leigh,  450.  But  this  opinion  has  been 
abandoned  even  by  the  courts  that  announced  it.  Vidal  v.  Girard's  Ex'rs, 
2  How.  127,  155,  194,  196;  Protestant  Episcopal  E.  Soc.  v.  Churchman,  80 
Va.  71S;  Trustees  v.  Guthrie  (1889)  86  Va.  125,  10  S.  E.  318. 

as  Morice  v.  Bishop  of  Durham,  9  Ves.  399,  405;  Kendall  v.  Granger,  5 
Beav.  300,  302. 


188  PROPERTY    IN    EQUITY — Tl;i  [Ch.  8 

etc.,  are  generally  upheld  as  charitable.100  Gifts  for  schools  of  learn- 
ing are  within  the  express  language  of  the  statute,  and  all  gifts  for 
educational  purposes  are  therefore  sustained  as  charitable.101  Gifts 
for  advancement  of  religion  arc  by  analogy  held  to  be  within  the 
statute,10'  and  so  are  gifts  for  public  and  general  purposes.103 

Distinction  between  Private  and  Charitnlile  Trusts. 

The  distinction  between  private  and  charitable  trusts  arises  out 
of  the  principle  that,  whenever  a  valid  charitable  trust  appears,  a 
court  of  equity  will  always  treat  it  with  favor.  Thus,  we  have  seen 
that  in  a  private  trust  the  beneficiary  must  always  be  an  ascer- 
tained person  or  persons,  but  it  is  almost  of  the  essence  of  a.  char- 
itable trusl  that  the  beneficiaries  be  an  indefinite  class  of  persons; 
as  the  poor  of  a  certain  city.  So,  the  trustee  in  a  private  trust  must 
be  an  ascertained  and  described  person,  but  equity  will  sustain  a 
charitable  trust,  though  no  trustee  has  been  appointed.104  Again, 
charitable  trusts  are  not  within  the  rule  against  perpetuities,  but 
may  continue  forever.105  Again,  the  objects  and  purposes  of  a  char- 
itable trust  need  not  be  clearly  defined  by  the  settlor.      If  an  abso- 

100  Powell  v.  Attorney  General,  3  Mer.  48;  Sohier  v.  Burr,  127  Mass.  221; 
Goodell  v.  Union  Ass'n  of  Children's  Home,  29  N.  J.  Eq.  32;  Daseomb  v. 
Marston,  80  Me.  223,  13  Atl.  SS8;  Hunt  v.  Fowler,  121  111.  269,  12  N.  E.  331, 
and  17  N.  E.  491. 

ioi  In  re  Latymer's  Charity,  L.  R.  7  Eq.  353;  Second  Religious  Soc.  v. 
Harriman,  12"*  Mass.  321;  Tiper  v.  Moulton,  72  Me.  155;  Dodge  v.  Williams, 
40  Wis.  70,  1  N.  W.  92,  and  50  N.  W.  1103;  Jones  v.  Habersham,  107  U.  S. 
174,  2  Sup.  Ct.  336.  i 

102  Gass  v.  Wilhite,  2  Dana  (Ky.)  170;  Morville  v.  Fowle,  144  Mass.  109,  10 
N.  E.  700;  Kinney  v.  Kinney,  86  Ky.  610,  6  S.  W.  593;  Andrews  v.  Andrews, 
110  111.  223.  A  devise  to  an  infidel  society  for  the  purpose  of  building  a  hall 
for  the  free  discussion  of  religion,  politics,  etc.,  is  not  a  valid  charitable  gift. 
Zeisweiss  v.  James,  63  Pa.  St.  465. 

103  Jones  v.  Williams,  Amb.  051;  Nightingale  v.  Goulbourn,  2  Phil.  Ch.  594; 
Newland  v.  Attorney  General,  3  Mer.  6S4. 

104  Mills  v.  Farmer.  1  Mer.  55,  96;  Pocock  v.  Attorney  General,  3  Ch.  Div. 
342;  Russell  v.  Allen.  107  V.  S.  107,  2  Sup.  Ct.  327;  In  re  Schouler,  134  Mass. 
426;  Brown  v.  Pancoast,  34  N.  J.  Eq.  324. 

io3  Attorney  General  v.  Duke  of  Northumberland,  7  Ch.  Div.  745;  Gillam  v. 
Taylor,  L.  R.  16  Eq.  581;  Isaac  v.  Defriez,  Amb.  595;  Andrews  v.  Andrews, 
110  111.  230;  City  of  Richmond  v.  Davis,  103  Ind.  449,  3  N.  E.  130;  Webster  v. 
Morris,  06  Wis.  306,  28  N.  W.  353. 


Ch.  8]  PUBLIC    OR    CPIARITABLE    TRUSTS.  189 

lute  intention  to  make  a  gift  for  a  charitable  purpose  clearly  appears, 
but  the  mode  by  which  it  is  to  be  carried  into  effect  has  been  left 
uncertain,  a  court  of  equity  will  supply  the  defect,  and  enforce  the 
charity.  For  instance,  if  a  man  bequeaths  a  sum  of  money  to  such 
charitable  uses  as  he  shall  direct  by  a  codicil  annexed  to  his  will, 
and  dies  without  making  such  a  codicil,  the  court  will  devote  the 
gift  to  such  charitable  purposes  as  it  Ihinks  fit.106  But  such  assist- 
ance wiU  only  be  given  where  the  charitable  intention  is  definite  and 
general.107 

The  most  striking  distinction  between  the  two  classes  of  trusts 
appears  in  the  doctrine  of  cy-pres,  which  was  thus  expressed  by  Lord 
Eldon:  "If  a  testator  has  manifested  a  general  intention  to  give  to 
a  charity,  the  failure  of  the  particular  mode  in  which  the  charity 
is  to  be  executed  shall  not  destroy  the  charity ;  but,  if  the  substan- 
tial intention  is  charity,  the  law  will  substitute  another  mode  of 
devoting  the  property  to  charitable  purposes,  though  the  formal 
intention  as  to  the  mode  cannot  be  accomplished." 108  One  of  the 
most  striking  illustrations  of  this  doctrine  appears  in  the  case  of 
Attorney  General  v.  Ironmongers'  Co.109  There  property  had  been 
bequeathed  in  trust  to  apply  one-half  the  income  for  "the  redemption 
of  British  slaves  in  Barbary  or  in  Turkey,"  and  the  other  one-half  to 
other  specified  charitable  purposes.  In  the  course  of  time,  it  hap- 
pened that  one-half  the  income  remained  unused,  because  there  were 
no  longer  any  British  slaves  in  Barbary  or  in  Turkey  to  redeem,  and 
the  court  of  chancery  directed  this  undisposed  of  one-half  to  be  ap- 
plied to  the  other  charitable  purposes  named  in  the  will,  thus  carry- 
ing out  the  original  purposes  of  testator  as  nearly  as  possible.  The 
same  principle  was  applied  in  a  celebrated  case  in  our  own  country.11* 
Property  had  been  bequeathed  to  trustees  to  apply  the  income  to  the 
maintenance  of  publications  having  for  their  object  the  creation  of 
a  public  sentiment  that  would  put  an  end  to  negro  slavery  in  the 
United  States.  Afterwards  negro  slavery  was  abolished,  and  it 
was  held  that  the  income  should  be  applied  to  the  education  of  the 

100  Attorney  General  v.  Syderfln,  1  Vern.  224. 

107  Leavers  v.  Clayton,  8  Ch.  Div.  584;  Aston  v.  Wood,  L.  R.  6  Eq.  419. 

los  Moggridge  v.  Thaekwell,  7  Ves.  56,  69. 

loo  2  Beav.  313. 

no  Jackson  v.  Phillips,  14  Allen,  539. 


190  PROPERTY    IN    EQUITY — TRUSTS.  [Cll.  •$ 

freed  slaves,  aa  being  more  nearly  in  consonance  with,  testator's  gen- 
eral intention  than  to  treat  the  trust  as  at  an  end,  and  turn  over 
the  property  to  the  residuary  legatees  named  in  the  will. 

Charitable  Trusts  in  the  United  States. 

This  brings  us  to  the  question,  how  far  do  the  peculiar  doctrines 
of  the  English  court  of  chancery  with  respect  to  charitable  trusts 
prevail  in  the  United  States?  The  general  system  has  been  adopted 
in  Massachusetts,111  Kentucky,112  and  Rhode  Island.118  The  federal 
courts,  also,  accept  the  English  system,  unless  the  question  arises  in 
a  state1  where  it  has  been  wholly  or  partially  rejected.114  In  other 
states  the  English  system  prevails  in  a  limited  and  restricted  form, — 
to  the  extent,  at  least,  that  the  beneficiaries,  and  sometimes  the 
trustees  and  the  objects,  are  permitted  to  be  uncertain.118  In  others, 
again,  the  entire  system  has  been  rejected,  root  and  branch,  and  no 
distinction  is  made  in  favor  of  charitable  trusts  as  compared  with 
private  trusts.11* 

m  See  cases  heretofore  cited;  Kent  v.  Dunham,  142  Mass.  216,  7  N.  E.  730; 
Minot  v.  Baker,  147  Mass.  348,  17  N.  E.  839;  Stratton  v.  Physio-Medical  Col- 
lege, 149  Mass.  508,  21  N.  E.  874;  Weeks  v.  Hobson,  150  Mass.  377,  23  N.  E. 
215. 

112  Peynado  v.  Peynado,  82  Ky.  5;  Kinney  v.  Kinney  's  Ex'r,  86  Ky.  610, 
0  S.  W.  593;   Moore  v.  Moore,  4  Dana,  354. 

U3  Tell  v.  Mercer,  14  R.  I.  412;   Peckham  v.  Newton,  15  R.  I.  321,  4  Atl.  758. 

in  Ould  v.  Washington  Hospital,  95  U.  S.  303;  Mormon  Church  v.  U.  S., 
136  U.  S.  1,  10  Sup.  Ct.  792. 

lis  Hunt  v.  Fowler,  121  El.  269,  276,  12  N.  E.  331,  and  17  N.  E.  491;  Coit  v. 
Comstock,  51  Conn.  352;  Burke  v.  Roper,  79  Ala.  138;  George  v.  Braddock, 
45  N.  J.  Eq.  757,  18  Atl.  8S1;  Howe  v.  Wilson,  91  Mo.  45,  3  S.  W.  390;  Jones  v. 
Renshaw,  130  Pa.  St.  327,  18  Atl.  051;  Seda  v.  Huuie,  75  Iowa,  429,  39  N.  W. 
685;   Estate  of  Hinckley,  58  Cal.  457. 

neDashiell  v.  Attorney  General,  5  Har.  &  J.  (Md.)  392;  Eutaw  Place  Bap- 
tist Church  v.  Shively,  67  Ma.  493,  10  Atl.  244;  Holland  v.  Alcock,  108  N.  Y. 
312,  16  X.  E.  305;  Ruth  v.  Oberbrunner,  40  Wis.  238;  Webster  v.  Morris,  66 
Wis.  366,  28  N.  W.  353;  Methodist  Episcopal  Church  v.  Clark,  41  Mich.  730, 
3  X.  W.  207;  Little  v.  Willford,  31  Minn.  173,  17  N.  W.  282;  Atwater  v.  Rus- 
sell, 49  Minn.  22,  51  N.  W.  624.  In  all  these  states,  except  Maryland,  it  is 
held  that  charitable  trusts  are  abolished  because  the  statutes  heretofore  cited 
prohibit  all  trusts  except  those  enumerated.  The  supreme  court  of  Califor- 
nia, however,  under  statutes  substantially  similar,  nevertheless  sustains  indefi- 
nite charitable  trusts.  Estate  of  Hinckley,  58  Cal.  457.  Until  quite  recently, 
charitable  trusts  were  not  recognized  in  Virginia.     Gallego's  Ex'rs  v.  Attor- 


<Jh.   8]  RESULTING    TRUSTS.  191 


RESULTING    TRUSTS. 

124.  When  the  legal  title  to  property  is  conveyed  or 
disposed  of,  but  the  terms  of  the  conveyance  or  disposi- 
tion, or  the  accompanying  facts  and  circumstances,  show 
that  the  beneficial  interest  is  not  intended  to  go  with  the 
legal  title,  a  trust  will  result  by  operation  of  law  in  favor 
of  the  person  for  whom  the  beneficial  interest  is  intended, 
though  no  trust  is  expressly  declared  in  his  favor.117 

The  main  distinction  between  express  and  resulting  trusts  is  this* 
In  an  express  trust  an  intention  to  create  a  trust  is  always  expressed 
or  declared.  In  a  resulting  trust  the  intention  is  not  expressed, 
but  is  inferred  by  operation  of  law  from  the  terms  of  the  conveyance 
or  will,  or  from  the  accompanying  facts  and  circumstances. 

SAME— CLASSIFICATION. 

125.  There  are  two  leading  classes  of  resulting  trusts: 

(a)  Where  an  owner  parts   with  the   legal  title, 

but  an  intention  to  retain  the  equitable  in- 
terest is  presumed. 

(b)  Where  property  is  purchased  in  the  name  of 

a  third  person,  but  equity  presumes  that 
the  person  paying  the  consideration  in- 
tended to  acquire  the  equitable  interest. 

SAME— PARTING  WITH   LEGAL   AND    RETAINING   EQUITA- 
BLE  INTEREST. 

126.  Wherever,  upon  a  conveyance,  devise,  or  bequest, 
it  appears  that  the  grantee,  devisee,  or  legatee  was  in- 
tended to  take  the  legal  estate  merely,  the  equitable  inter- 

ney  General,  3  Leigh,  450;    Kain  v.  Gibboney,  101  U.  S.  362.     But  now,  by 
force  of  recent  decisions,  indefinite  charitable  trusts  will  be  upheld.     Protes- 
tant Episcopal  E.  Soc.  v.  Churchman,  80  Va.  718;   Trustees  v.  Guthrie,  86  Va. 
125,  10  S.  E.  318. 
"T  2  Pom.  Eq.  Jut.  §  1031;   1  Beach,  Eq.  Jur.  §  215. 


192  PROPERTY  IN  EQUITY — TRUSTS.  [Ch.  8 

est,  or  so  much  as  remains  undisposed  of,  -will  result,  if 
arising  out  of  the  settlor's  realty,  to  himself  or  his  heirs, 
and,  if  out  of  the  personal  estate,  to  himself  or  his  execu- 
tors. 

The  important  question  in  this  class  of  resulting  trusts  is,  on 
what  grounds  will  a  court  of  equity  hold  that  a  settlor  or  testator 
did  not  part  with  the  equitable  interest?  It  should  be  observed,  in 
the  first  place,  that  this  class  of  resulting  trusts  arises  only  in  case;i 
of  gifts  or  voluntary  conveyances;  for,  wherever  a  consideration 
is  paid  by  the  immediate  transferee,  the  presumption  that  a  trust 
was  intended  to  result  in  favor  of  the  settlor  is  at  once  rebutted.118 

Where  Intention  is  Express. 

Sometimes  an  intention  not  to  benefit  the  grantee,  devisee,  or  lega- 
tee is  actually  expressed  in  the  instrument  which  transfers  the  leffaT 
estate.  Thus,  where  a  bequest  is  made  to  a  person  "upon  trust," 
and  no  trust  is  declared,119  or  the  trusts  declared  are  too  vague  to 
be  executed,120  or  fail  by  lapse,121  the  trustee  can  have  no  pretense 
for  claiming  the  beneficial  ownership,  the  whole  property  being 
clearly  impressed  with  a  trust.  In  such  cases,  therefore,  the  trust 
will  result  to  the  settlor  or  his  representatives,  the  heir  as  to  realty, 
and  the  next  of  kin  as  to  personalty.  Cases  where  a  settlor  has  at- 
tempted to  create  an  illegal  express  trust  present  some  difficulty.  As 
a  general  rule,  however,  the  maxim  applies,  "He  who  comes  into 
equity  must  come  with  clean  hands."  If  a  person  knowingly  at- 
tempts to  contravene  the  law,  and  for  that  purpose  conveys  his  prop- 
erty to  a  trustee,  that  law  which  he  has  attempted  to  outrage  will 
give  him  no  assistance  to  recover  his  property  by  way  of  resulting 

us  Salisbury  v.  Clarke,  Gl  Vt.  453.  17  Atl.  135;  Hogan  v.  Jaques.  19  N.  J. 
Eq.  123;  Moore  v.  Jordan,  G5  Miss.  229.  3  South.  737;  Brown  v.  Jones,  1  Atk. 
188. 

no  Dawson  v.  Clarke,  18  Ves.  247,  254;  Barrs  v.  Fewkes,  2  Hen.  &  M.  60; 
Shaw  v.  Spencer,  100  Mass.  382,  3SS.  See,  also,  Bennett  v.  Hutson,  33  Ark. 
702;   Russ  v.  Mebius,  16  Cal.  350. 

120  Fowler  v.  Garlike,  1  Russ.  &  M.  232;  Leavers  v.  Clayton,  8  Ch.  Div.  584; 
Nichols  v.  Allen,  130  Mass.  211;  Olliffe  v.  Wells,  130  Mass.  221;  Heiskell  v. 
Trout,  31  W.  Va.  S10,  8  S.  E.  557. 

121  Ackroyd  v.  Sniithson,  1  Brown,  Ch.  505.  And  see  ante,  76,  "Conver- 
sion." 


Ch.   8]  RESULTING    TRUSTS.  193 

trust122  But,  although  equity  will,  in  general,  give  no  assistance  to 
wrongdoers,  yet  it  will,  on  grounds  of  public  policy,  decree  a  re- 
sulting trust  in  favor  of  the  settlor,  where  the  effect  of  allowing  the 
trustee  to  retain  the  property  might  be  to  effectuate  an  unlawful 
object  or  protect  a  fraud.  And  it  will  also  make  a  like  decree  when 
the  illegal  purpose  has  never  been  carried  into  effect;  for  one  who 
merely  intends  to  commit  an  illegality  is  allowed  a  locus  peniten- 
tiae.123  Since  the  trust  in  this  class  of  cases  results  by  force  of  the 
written  instrument,  the  trustee  cannot  defeat  the  resulting  trust  by 
parol  evidence  in  his  favor.124 
Where  Intention  is  Presumed. 

1.  The  most  important  class  of  cases  under  this  head  are  those  in 
which  a  settlor  conveys  property  on  trusts  which  do  not  exhaust 
the  whole  estate.  In  respect  to  this  class,  the  rule  is  that  if  a  trust 
be  declared  of  part  of  the  estate,  and  nothing  is  said  as  to  the  residue, 
then,  clearly,  the  creation  of  the  partial  trust  is  regarded  as  the  sole 
object  in  view,  and  the  equitable  interest  undisposed  of  will  result 
to  the  settlor  or  his  representatives.125  A  distinction  must,  however, 
be  observed  between  a  devise  to  a  person  for  a  particular  purpose, 
with  no  intention  of  conferring  the  beneficial  interest,  and  a  devise 
with  a  view  of  conferring  the  beneficial  interest  subject  to  a  par- 
ticular direction.  Thus,  a  devise  to  A.  and  his  heirs  on  trust  to 
pay  testator's  debts  is  a  devise  solely  for  a  particular  purpose,  and 
the  residue  will  result  to  testator's  heirs;  but  a  devise  to  A.  and  his 
heirs  charged  with  testator's  debts  shows  an  intention  to  devise 
beneficially  subject  to  the  charge,  and  whatever  remains  after  the 
charge  has  been  satisfied  will  belong  to  the  devisee.126 

2.  It  was  an  ancient  and  well-known  principle  of  equity,  before 
the  statute  of  uses,  that,  when  a  feoffment  of  real  estate  was  made 

122  Ayerst  v.  Jenkins,  L.  R.  16  Eq.  2S5;  Symes  v.  Hughes,  L.  R.  9  Eq.  475; 
Haigh  v.  Kaye,  7  Ch.  App.  469;  Pawson  v.  Brown,  13  Ch.  Div.  202.  See, 
also,  ante,  180,  "Illegal  Express  Trusts." 

123  Underh.  Eq.  p.  65. 

124  Langham  v.  Sanford,  17  Ves.  442;   Irvine  v.  Sullivan,  L.  R.  8  Eq.  675. 

125  Parnell  v.  Hingston,  3  Smale  &  G.  337,  344;  Easterhrookes  v.  Tillinghast, 
5  Gray,  17;  McCollister  v.  Willey,  52  Ind.  382;  Skellenger's  Ex'rs  v.  Skellen- 
ger's  Ex'r,  32  N.  J.  Eq.  659;  Schlessinger  v.  Mallard,  70  Cal.  326,  11  Pac.  728; 
Weaver  v.  Leiman,  52  Md.  708;  Blount  v.  Walker,  31  S.  C.  13,  9  S.  E.  804. 

126  King  v.  Denison,  1  Ves.  &  B.  272,  per  Lord  Eldon. 

eq.jur. — 13 


1 '. )  4  PROPERTY    IN    EQUITY — TBI  [Ch.   3 

to  a  person  without  consideration,  the  use  at  once  resulted  to  the 
feoffor,  ;ind  in  equity  he  continued  to  enjoy  the  beneficial  interest. 
It  was  therefore  at  one  time  held  in  England  that,  on  a  voluntary  con- 
veyance to  a  stranger,  a  trust  would  result  to  the  grantor  when  no 
intention  appeared  to  confer  a  beneficial  interest  on  the  grantee.127 
This  doctrine,  however,  never  applied  to  conveyances  to  a  wife  or 
child,  but  an  intention  to  make  an  advancement  was  presumed,  and 
the  wife  or  child  took  beneficially.128  Under  the  system  of  convey- 
ances in  force  in  the  United  States,  where  land  is  conveyed  to  the 
"use"  of  the  grantee,  no  use  can,  of  course,  result  to  the  grantor, 
though  the  conveyance  is  voluntary;129  and  especially  is  this  true 
of  deeds  containing  covenants  of  warranty,  which  estop  the  grantor 
from  claiming  any  legal  or  beneficial  interest  in  the  estate.130 

:'..  Since  this  species  of  resulting  trust  depends  merely  on  presump- 
tion, parol  evidence  of  the  settlor's  intention  is  admissible  to  rebut 
it  as  to  instruments  inter  vivos.131 

SAME— PURCHASE   IN    NAME    OF    THIRD   PERSON. 

127.  Purchases  of  this  kind  are  divisible  into  two  classes: 

(a)  Purchase  in  name  of  stranger. 

(b)  Purchase  in  name  of  wife,  child,  or  near  rel- 

ative. 

SAME— PURCHASE    IN   NAME    OF    STRANGER. 

128.  The  clear  result  of  all  the  cases,  without  a  single 
exception,  is  that  the  trust  of  a  legal  estate,  whether 
taken  in  the  names  of  the  purchaser  and  others  jointly, 
or  in  the  names  of  others  without  the  purchaser,  whether 
in  one  or  several,  whether  jointly  or  successive,  results  to 
the  man  who  advances  the  purchase  money.132 

127  Lewin,  Trusts,  144. 

1  =  8  id. 

123  Graves  v.  Graves,  29  N.  H.  129;  Spra^ue  v.  Woods,  4  Watts  &  S.  192; 
Gove  v.  Learoyd,  140  Mass.  524,  5  N.  E.  499;  Gould  v.  Lynde,  114  Mass.  366; 
Philbrook  v.  Delano,  29  Me.  410. 

Beavers  v.  McKinley,  50  Kan.  602,  32  Pac.  363,  and  33  Pac.  359. 

i3i  Cook  v.  Hutchinson,  1  Keen,  42,  50;   Fowkes  v.  Pascoe,  10  Ch.  App.  343. 

i=2  Per  Lord  Chief  Baron  Eyre,  Dyer  v.  Dyer,  2  Cox.  93. 


Ch.  8]  RESULTING    TRUSTS.  195 

This  rule  rests  on  the  maxim  that  equity  regards  substance  rather 
than  form.  The  person  paying  the  consideration  for  property  is 
the  equitable  owner,  though  in  fonn  the  legal  title  may  be  taken  in 
the  name  of  another.  To  warrant  the  application  of  this  rule, 
however,  the  person  advancing  the  purchase  money  must  do  so  as 
purchaser,  and  not  by  way  of  loan  to  the  person  in  whose  name  the 
legal  title  is  taken.133  The  rule  itself  is  not  confined  to  realty, 
but  also  applies  to  personalty;  and,  if  one  purchases  stock  or  a 
chattel  interest  in  the  name  of  a  stranger,  a  trust  results  to  the  pur- 
chaser.134 

A  very  important  application  of  the  rule  is  to  the  case  of  joint  pur- 
chasers. Where  several  persons  join  in  a  purchase  of  land,  and  their 
contributions  are  unequal,  then,  though  the  legal  title  is  taken  in 
the  name  of  all  jointly,  or  in  the  name  of  one  only,  or  in  the  name 
of  a  stranger,  a  trust  results  to  each  of  them,  in  proportion  to  the 
amount  originally  contributed.135  If,  however,  the  contributions  are 
equal,  and  the  legal  title  is  taken  in  the  name  of  all  jointly,  a  court 
of  equity,  acting  on  the  maxim  that  equity  follows  the  law,  will  pre- 
sume that  the  creation  of  a  joint  tenancy  was  intended,  and  conse- 
quently no  trust  will  result  in  favor  of  the  heirs  of  one  joint  tenant 
as  against  the  survivor,  who  by  the  rules  of  law  takes  the  entire  es- 
tate.136 

Parol  Evidence. 

Since  the  statute  of  frauds  extends  to  creations  or  declarations 
of  trusts  by  parties  only,  and  does  not  affect — indeed,  expressly  ex- 

133  Whaley  v.  Whaley.  71  Ala.  159;  Torrey  v.  Cameron,  73  Tex.  5S3.  11  S. 
W.  S40. 

134  Rider  v.  Kidder.  10  Ves.  360;  Ex  parte  Houghton,  17  Ves.  253;  Creed  v. 
Bank,  1  Ohio  St.  1;  Kelley  v.  Jenness,  50  Me.  455. 

135  Lake  v.  Craddock,  3  P.  Wms.  158,  1  White  &  T.  Lead.  Cas.  Eq.  265; 
Lewis  v.  Building  Ass'n,  70  Ala.  276;  Somers  v.  Overhulser,  67  Cal.  237,  7 
Pac.  645;  Donlin  v.  Bradley.  119  111.  412,  10  N.  E.  11;  Dow  v.  Jewell,  IS  N.  H. 
340;  McCully  v.  McCully,  78  Ya.  159;  Parker  v.  Coop,  60  Tex.  111.  Some  of 
the  cases,  however,  hold  that  a  trust  will  not  result  in  such  a  case,  unless  the 
person  in  whose  favor  it  is  sought  to  be  enforced  advanced  the  money  for 
some  specific  part  or  distinct  interest  in  the  land.  McGowan  v.  McGowan, 
14  Gray,  119;  Bailey  v.  Hemenway,  147  Mass.  326,  17  N.  E.  645:  White  v. 
Carpenter,  2  Paige,  217,  239. 

136  Rigden  v.  Vallier,  3  Atk.  735.     This  branch  of  the  rule  is  comparatively 


196  PROPERTY    IN    EQUITY — TRUSTS.  [Cfa.  8 

cepts — trusts  arising  by  operation  or  construction  of  law,  it  is  coin- 
petent  for  the  real  purchaser  to  prove  his  payment  of  the  purchase 
money  by  parol,  even  though  it  be  expressed  otherwise  in  the  deed.1" 
The  evidence  must  prove  the  fact  very  clearly,138  though  no  objection 
lies  against  the  reception  of  circumstantial  evidence;  as  that  the 
means  of  the  pretended  purchaser  were  so  slender  as  to  make  it  ini- 
possible  that  he  should  have  paid  the  purchase  money  himself.139 

a  Legislation. 
On  studying  this  subject,  "the  thought  arises  that  in  this  class 
of  cases  equity  has  busied  itself  overmuch  with  the  affairs  of  others, 
and  that  some  observance  of  the  doctrine  of  laissez  faire  would  not 
have  been  an  unmixed  evil."  140  For  example,  when  a  person  paving 
the  purchase  money  for  land  directs  a  conveyance  to  be  made  to  a 
stranger,  why  should  it  not  be  presumed  that  a  gift  was  intended, 
and  why  should  the  purchaser  afterwards  be  permitted  to  assert  title 
by  way  of  resulting  trust?  Considerations  such  as  these  have  led 
to  the  enactment  of  statutes  in  several  states  abolishing  this  class 
of  resulting  trusts.  These  statutes  declare  that  no  trust  shall  re- 
sult in  favor  of  the  person  paying  the  consideration  as  against  the 
grantee  named  in  the  conveyance,  unless  the  grantee  takes  the  title 
without  the  knowledge  of  the  person  paying  the  consideration,  or 
unless  the  grantee,  in  violation  of  a  trust,  purchases  the  land  with 
money  belonging  to  another  person.  Such  conveyances  are  also  de- 
clared fraudulent  as  against  the  creditors  of  the  person  paying  the 
consideration,  and  a  trust  results  in  their  favor.141     These  statutes, 

unimportant  in  the  United  States,  since  joint  tenancies  are  practically  abol- 
ished. 

137  Lewin,  Trusts,  p.  6H7;  citing  Ryall  v.  Ryall,  1  Atk.  59;  Lench  v.  Lench, 
lo  Ves.  517.  See,  also,  Peabody  v.  Tarbell,  2  Cush.  (Mass.)  232;  Boyd  v.  Mo- 
Lean,  1  Johns.  Ch.  (N.  Y.)  5S2;  McGuire  v.  Ramsey,  9  Ark.  518,  527;  Osborne 
v.  Endicott,  6  Cal.  149;  Depeyster  v.  Gould.  3  N.  J.  Eq.  474,  480. 

iss  Gascoigne  v.  Thwing,  1  Vera.  3GG;  Boyd  v.  McLean,  1  Johns.  Ch.  5S2; 
Sandford  v.  Weeden,  2  Heisk.  71;  Shaw  v.  Shaw,  8G  Mo.  594;  Green  v.  Die- 
trich, 114  111.  G3G,  3  N.  E.  800;  Laughlin  v.  Mitchell,  14  Fed.  382;  Hayes'  Ap- 
peal,  123  Pa.  St.  100,  16  Atl.  GOO. 

139  Willis  v.  Willis,  2  Atk.  71. 

"0  TJnderh.  Eq.  p.  G7. 

i«  Rev.  St.  N.  Y.  pt.  2,  c.  1,  art.  2,  §§  51-53;  How.  Ann.  St.  Mich.  18-83,  §§ 
55G9-5571;    Gen.    St.    Minn.   p.    553,    §§   7-9;    Sanb.    &   B.    Ann.    St.    Wis.    §§ 


Ch.  8]  RESULTING    TRUSTS.  197 

however,  relate  only  to  real  property,  and  do  not  touch,  cases  of  per- 
sonal property.143 

SAME— PURCHASE    IN    NAME    OF   WIFE,   CHILD,    OR  NEAR 

RELATIVE. 

129.  Where  land  is  purchased  in  the  name  of  a  wife, 
child,  or  other  near  relative,  there  "will  be  prima  facie  no 
resulting  trust  for  the  purchaser;  but,  on  the  contrary,  a 
presumption  arises  that  an  advancement  was  intended. 

Where  one  person  stands  in  such  relation  to  another  that  there 
is  an  obligation  on  that  person  to  make  a  provision  for  the  other,  a 
purchase  or  investment  in  the  name  of  the  other  will  be  presumed 
to  be  in  discharge  of  that  obligation,  and  therefore,  in  the  absence 
of  evidence  to  the  contrary,  the  purchase  or  investment  is  in  itself 
evidence  of  a  gift;  in  other  words,  the  presumption  of  gift  arises  from 
the  moral  obligation  to  give.143  This  principle  extends  not  only 
to  the  case  of  children,144  but  to  that  of  a  wife,145  son-in-law,146  or 
mother;141  in  short,  to  all  persons  whom  the  purchaser  is  under 
a  moral  obligation  to  support.148  But  such  a  purchase  gives  rise 
only  to  a  presumption  of  gift,  and  hence  parol  evidence  is  admissible 
to  rebut  the  presumption.149     The  evidence  must,  however,  be  re- 

2077-2079;    Dassler's  Comp.  Laws  Kan.  p.  996,  §§  6-8;   2  Rev.  St  Ind.  18S8, 
§§  2974-2976. 

1*2  2  Pom.  Eq.  Jur.  §  1042. 

i*3  Jessel,  M.  R.,  in  Bennet  v.  Bennet,  10  Ch.  Div.  474. 

144  Dyer  v.  Dyer,  2  Cox,  92,  1  White  &  T.  Lead.  Cas.  Eq.  314;  Murphy  v. 
Nathans,  46  Pa.  St.  508. 

145  Schuster  v.  Schuster,  93  Mo.  438,  6  S.  W.  259;  Earnest's  Appeal,  106  Pa. 
St.  310. 

us  Baker  v.  Leathers,  3  Ind.  558. 

«7  Todd  v.  Moorhouse,  L.  R.  19  Eq.  69. 

148  it  has  been  held  in  England  that  a  purchase  by  a  mother  in  her  child's 
name,  during  her  husband's  lifetime,  does  not  give  rise  to  the  presumption  of 
an  advancement,  because  the  mother  is  under  no  legal  obligation  to  support 
the  child  during  coverture.  In  re  De  Visme,  2  De  Gex,  J.  &  S.  17;  Bennet  v. 
Bennet,  10  Ch.  Div.  474.  The  soundness  of  this  proposition  is  questionable; 
for,  as  said  in  Sayre  v.  Hughes,  L.  R.  5  Eq.  376,  maternal  affection  as  a  mo- 
tive for  bounty  is  the  strongest  of  all. 

143  Beck  v.  Beck,  43  N.  J.  Eq.  39,  10  Atl.  155;  Harden  v.  Darwin,  66  Ala.  55. 


198  PROPERTY  IN  KQUITY — TRUSTS.  [Ch.  8 

Btricted  to  facts  and  declarations  that  occurred  antecedently  to,  or 
contemporaneously  and  in  immediate  connection  with,  the  trans- 
action.160 

CONSTRUCTIVE    TRUSTS. 

130.  When,  on  the  grounds  of  justice  and  good  con- 
science, 'without  reference  to  the  intention  of  the  parties, 
equity  considers  the  holder  of  the  legal  estate  to  be  not 
entitled  to  enjoy  the  equitable  or  beneficial  interest,  it 
treats  him  as  trustee.  Trusts  thus  created  are  called 
"constructive  trusts."151 

In  express  and  resulting  trusts,  an  intention  to  create  a  trust 
is  either  expressed  or  presumed.  The  element  of  intention,  whether 
express  or  presumed,  does  not  enter  into  the  creation  of  a  constructive 
trust.  Whenever  one  person  acquires  the  property  of  another  by 
fraud  in  any  of  its  various  forms,  equity  will  raise  a  constructive  trust 
in  favor  of  such  other,  and  thus  enable  him  to  follow  the  specific  prop- 
erty, and  preserve  his  ownership  therein.152  The  defrauded  person 
is  in  equity  considered  the  cestui  que  trust  and  the  real  equitable 
owner,  while  the  person  committing  the  fraud  is  considered  the 
trustee  holding  the  bare  legal  title.  The  beneficiary  may  therefore 
compel  the  trustee  to  convey  the  property,  and  account  for  the  rents 
and  profits  which  he  has  received,  or  which  he  ought  to  have  ob- 
tained, while  the  property  has  been  in  his  hands  and  under  his  con- 
trol.153 

In  considering  the  subject  of  fraud,  we  saw  that  the  acquisition  of 
trust  property  by  a  trustee  or  person  having  a  fiduciary  character 
was  presumptively  fraudulent.154  In  devising  a  remedy  for  such 
fraud,  equity  has  utilized  the  principle  of  constructive  trusts; 
and  it  decrees  that  any  person  who  makes  personal  profit  out  of  his 

iso  Grey  v.  Grey,  2  Swanst.  504,  600;  Sidmouth  v.  Sidmouth,  2  Beav.  447,  456; 
Read  v.  Huff,  40  N.  J.  Eq.  229. 
isi  Smith,  Prin.  Eq.  p.  84. 

152  pom.  Eq.  Jur.  §  1044. 

153  Perry,  Trusts,  §  166;  Hollinshead  v.  Simms,  51  Cal.  158;  Hendrix  v. 
Nunn,  46  Tex.  142;  Johnson  v.  Giles,  69  Ga.  652;  McLane  v.  Johnson,  43 
Vt.  48. 

is*  Ante,  145. 


Ch.  8]  CONSTRUCTIVE    TRUSTS.  199 

fiduciary  position  holds  such  profit  as  a  constructive  trustee  for  the 
beneficiary.155  Thus,  a  trustee  who  in  his  own  name  renews  a  lease 
belonging  to  his  cestui  que  trust  holds  the  new  lease  for  his  cestui 
que  trust; 150  and  a  partner  who  renews  a  partnership  lease  in  his 
own  name  holds  it  as  a  trust  for  the  partnership.167 

The  principle  of  constructive  trusts  is  not,  however,  confined  to 
cases  of  fraud  presumed  from  the  relation  of  the  parties.  It  ap- 
plies, also,  to  cases  of  actual  fraud.  A  striking  illustration  is  fur- 
nished in  the  case  of  wills.  While  it  is  fully  settled  that  a  court  of 
equity  has  no  jurisdiction  to  set  aside  a  will  procured  by  fraud,158  yet 
it  is  just  as  fully  settled  that  equity  will  fasten  a  constructive  trust 
on  a  particular  devise  or  bequest  procured  by  the  fraud  of  the  devisee 
or  the  legatee.  Thus,  if  a  bequest  is  made  on  the  faith  of  the  legatee's 
promise  to  apply  it  for  a  particular  purpose,  equity  will  raise  a  con- 
structive trust  in  favor  of  the  person  for  whom  it  was  promised  to 
be  applied;  and,  if  the  purpose  proves  to  be  illegal,  then  a  con- 
structive trust  will  arise  in  favor  of  the  heirs  and  next  of  kin.159  In 
all  these  cases  it  was  steadily  claimed  that  a  plain  and  unambiguous 
devise  in  a  will  could  not  be  modified  or  cut  down  by  extrinsic  matter 
lying  in  parol  or  unattested  papers,  and  that  the  statute  of  frauds 
and  that  of  wills  excluded  the  evidence;  and  it  was  as  steadily  an- 
swered that  the  devise  was  untouched,  that  it  was  not  at  all  modified, 
that  the  property  passed  under  it,  but  that  the  law  dealt  with  the 
holder  for  his  fraud,  and  out  of  the  facts  raised  a  trust  ex  maleficio, 

155  In  Rolfe  v.  Gregory,  4  De  Gex,  J.  &  S.  576,  579,  Lord  Westbury  said: 
"When  it  is  said  that  the  person  who  fraudulently  receives  or  possesses  him- 
self of  trust  property  is  converted  by  this  court  into  a  trustee,  the  expression 
is  used  for  the  purpose  of  describing  the  nature  and  extent  of  the  remedy 
against  him,  and  it  denotes  that  the  parties  entitled  beneficially  have  the  same 
rights  and  remedies  against  him  as  they  would  be  entitled  to  against  an  ex- 
press trustee  who  had  fraudulently  committed  a  breach  of  trust." 

156  Phyfe  v.  Wardell,  5  Paige,  268;  Keech  v.  Sandford,  1  White  &  T.  Lead. 
Cas.  Eq.  53;  In  re  Morgan,  18  Ch.  Div.  93. 

iBT  Mitchell  v.  Reed,  61  N.  Y.  123. 

168  Allen  v.  McPherson,  1  H.  L.  Cas.  191;  In  re  Broderick's  Will,  21  Wall. 
503;  Colton  v.  Ross,  2  Paige,  396. 

159  in  re  O'Hara,  95  N.  Y.  403;  Curdy  v.  Berton,  79  Cal.  420.  21  Pac.  858; 
Williams  v.  Vreeland,  32  N.  J.  Eq.  135;  Hooker  v.  Oxford,  33  Mich.  454;  Dowd 
v.  Tucker,  41  Conn.  197;  Gilpatrick  v.  Glidden,  81  Me.  137,  16  Atl.  464;  Thynn 
v.  Thynn,  1  Vern.  296. 


200  PROPERTY    IN    EQUITY — TRUSTS.  [Ch.    3 

instead  of  resting  upon  one  as  created  by  testator.180     So,  also,  when 
the  next  of  kin  prevents  the  making  of  a  bequest  by  promising  to  hold 

the  property  for  the  benefit  of  the  intended  legatee,  the  property  will 
be  impressed  with  a  constructive  trust  in  favor  of  the  legatee.181 

DUTIES   AND    LIABILITIES    OF   TRUSTEES. 

131.  The  paramount  duty  of  a  trustee  is  to  carry  out  the 
directions  contained  in  the  instrument  creating  the  trust, 
except  so  far  as  they  are  contrary  to  good  morals,  or  are 
in  conflict  with  some  positive;  law,  or  except  so  far  as 
some  statute  has  given  him  a  discretion.162 

The  rules  fixed  by  law  governing  a  trustee's  duties  and  liabilities 
apply  only  when  the  instrument  creating  the  trust  is  silent,  and  in 
all  cases  the  trustee  must  conform  to  the  directions  contained  in  the 
trust  instrument.  Thus,  where  a  trust  instrument  directs  a  sale 
of  the  property  for  a  certain  price,  the  trustee  cannot  sell  for  less; 183 
and,  where  the  direction  is  to  sell  for  cash,  a  sale  on  credit  is 
bad.164 

SAME— GETTING  IN   OUTSTANDING   TRUST   PROPERTY. 

132.  Subject  to  the  foregoing  principle,  it  is  the  first 
duty  of  a  trustee  to  reduce  the  trust  property  to  his  pos- 
session, because  he  is  responsible  for  its  security. 

Debts  due  the  trust  estate  must  therefore  be  collected  with  all  rea- 
sonable diligence.  Money  should  not,  as  a  rule,  be  left  outstanding 
on  personal  security,  though  the  creator  of  the  trust  himself  consid- 

leo  in  re  O'Hara,  95  N.  Y.  403,  413,  414. 

ir'i  Williams  v.  Fitch,  IS  N.  Y.  546.  The  same  principle  applies  where  an 
absolute  conveyance  is  made  to  one  on  the  faith  of  his  oral  promise  to  hold  it 
for  another.     Fischbeck  v.  Gross,  112  111.  208. 

162  2  Pom.  Eq.  Jur.  §  10G2;  Underh.  Eq.  p.  73. 

lea  Cadwell  v.  Brown,  3G  111.  103. 

is*  Perry,  Trusts,  §  785;  Waterman  v.  Spaulding,  51  HI.  425;  Palmer  v. 
Williams,  24  Mich.  328.  For  other  illustrations  of  the  rule,  see  In  re  Lewis, 
81  N.  Y.  421;  James  v.  Cowing,  82  N.  Y.  449. 


Ch.   8]  DUTIES    AND    LIABILITIES    OF    TRUSTEES.  201 

ered  it  sufficient.185  Trustees  will,  however,  be  allowed  the  exercise 
of  a  fair  discretion,  and  are  not  expected  to  commence  legal  proceed- 
ings unnecessarily,  nor  where  such  proceedings  would  be  useless;166 
but  they  will  not  be  justified  in  granting  any  great  indulgence.167 
Trustees  may,  in  the  exercise  of  a  sound  discretion,  release  or  com- 
pound a  debt.168  Money  invested  in  good  real-estate  securities  need 
not  be  called  in,  unless  it  is  necessary  for  the  payment  of  debts.169  If 
bonds,  insurance  policies,  and  other  choses  in  action  are  assigned 
in  trust,  it  is  generally  safer  for  the  trustee  to  notify  the  debtor  of 
the  assignment,  since  otherwise  payment  to  the  assignor  would  be 
valid.170 

SAME— CUSTODY    AND    CARE    OF   TRUST   PROPERTY. 

133.  In  managing  trust  affairs,  the  trustee  must  exer- 
cise all  those  precautions  which  an  ordinarily  prudent  man 
of  business  would  take  in  managing  similar  affairs  of  his 
own. 

134.  The  trustee  must  act  personally,  and  cannot  dele- 
gate to  strangers,  at  his  own  will  and  pleasure,  the  ex- 
ecution of  the  trust,  and  the  care  and  management  of  the 
trust  moneys. 

Duty  to  Exercise  Ordinary  Care. 

There  has  been  some  diversity  of  opinion  as  to  the  degree  of  care 
required  of  trustees.  It  is,  of  course,  impossible  to  give  the  measure 
of  culpable  negligence  for  all  cases,  as  the  degree  of  care  required  de- 

165  Powell  v.  Evans,  5  Ves.  S39;  Cross  v.  Petrie,  10  B.  Mon.  413;  Neff's  Ap- 
peal, 57  Pa.  St.  91;   Will's  Appeal,  22  Pa.  St.  325. 

166  Clack  v.  Holland,  19  Beav.  271. 

167  Lowson  v.  Copeland,  2  Brown,  Ch.  156;  Caffrey  v.  Darby,  6  Ves.  4S8; 
See,  also,  Harrington  v.  Keteltas,  92  N.  Y.  40;  O'Connor  v.  Gifford,  117  N.  Y. 
245,  22  N.  E.  1036. 

168  Blue  v.  Marshall,  3  P.  Wms.  381;  Bacot  v.  Heyward,  5  S.  C.  441.  In  the 
United  States  the  power  to  compromise  debts  is  very  generally  conferred  by 
statute.     2  Perry,  Trusts,  §  482. 

169  Orr  v.  Newton,  2  Cox,  274. 

i7o  Jacob  v.  Lucas,  1  Beav.  436;  Brashear  v.  West,  7  Pet  608;  Reed  v.  Mar- 
ble, 10  Paige,  409. 


202  PROPERTY    IN    EQUITY TRUSTS.  [Ch.   8 

pends  upon  the  subject  to  which  it  is  to  be  applied.  The  modern  deci- 
sions, however,  both  English  and  American,  unite  in  holding  that  the 
trustee  is  bound  to  employ  such  diligence  and  prudence  in  the  care 
and  management  of  the  trust  property  as  an  ordinarily  prudent  man 
of  business  would  exercise  in  managing  similar  affairs  of  his  own.171 
If,  however,  trustees  act  in  good  faith,  within  the  limits  of  powers 
conferred,  using  proper  prudence  and  diligence,  they  are  not  respon- 
sible for  mere  mistakes  or  errors  of  judgment.172  Applying  this  rule, 
it  has  been  held  that  a  trustee  is  not  liable  for  a  loss  caused  by  some 
unavoidable  accident.178  So,  also,  a  trustee  is  not  liable  where  money 
deposited  in  bank  in  the  proper  course  of  business  is  lost  by  the  fail- 
ure of  the  bank.174  Trust  moneys  must  remain  somewhere,  and,  in 
the  usual  course  of  business,  one  would  utilize  a  bank  for  that  pur- 
pose. 

In  conclusion,  it  should  be  borne  in  mind  that  the  creator  of  the 
trust  may  exempt  the  trustee  from  the  measure  of  liability  imposed 
by  law,  and  that  in  such  case  the  court  has  no  right  to  impose  ob- 
ligations from  which  he  has  been  thus  relieved.175 

Delegation  of  Powers. 

The  office  of  trustee,  being  one  of  personal  confidence,  cannot  be 
delegated;  and  a  trustee,  who  attempts  to  shift  his  duty  on  other 
persons,  remains  responsible  to  the  cesruis  que  trustent.178  Thus,  a 
trustee  vested  with  a  discretionary  power  to  sell  land  cannot  au- 

i-i  Kins:  v.  Talbot.  40  N.  Y.  76,  85;  Hun  v.  Cary,  82  N.  Y.  65;  In  re  Cornell, 
110  N.  Y.  351,  357.  18  N.  E.  142;  Carpenter  v.  Carpenter,  12  It.  I.  544;  Shurt- 
lcff  v.  Rile,  140  Mass.  213,  4  N.  E.  407;  Loud  v.  Winchester,  64  Mich.  23,  30 
N.  W.  896;  Godfrey  v.  Faulkner,  23  Ch.  Div.  4S3;  Srnethurst  v.  Hastings,  30 
Ch.  Div.  490,  498. 

i-2  Pleasanton's  Appeal,  99  Pa.  St.  362;  Williams  v.  Nichol,  47  Ark.  254,  1 
S.  W.  243;  Miller  v.  Proctor,  20  Ohio  St.  442;  Bowker  v.  Pierce,  130  Mass.  262. 

i-3  Job  v.  Job,  6  Ch.  Div.  562.  Nor  by  theft,  Carpenter  v.  Carpenter,  12 
R.  I.  544. 

I"-*  Ex  parte  Belchier,  Amb.  21a;  Johnston  v.  Newton,  11  Hare,  160;  People 
v.  Faulkner,  107  N.  Y.  477,  488,  14  N.  E.  415.  Trustee  is  not  responsible  for 
receiving  depreciated  Confederate  currency  in  payment  of  a  debt  due  the  trust 
estate,  where  he  acted  in  good  faith  and  with  ordinary  prudence.  Douglass 
v.  Stephenson's  Ex'rs,  75  Va.  747. 

"6  Crabb  v.  Young,  92  N.  Y.  56;  Tuttle  v.  Gilmore,  36  N.  J.  Eq.  617. 

i-o  Turner  v.  Corney,  5  Beav.  517;  City  of  St.  Louis  v.  Priest,  S8  Mo.  612; 
Fuller  v.  O'Neil,  69  Tox.  349,  6  S.  W.  181;   Newton  v.  Bronson,  13  N.  Y.  587. 


Cll.   8]  DUTIES    AND    LIABILITIES    OF    TRUSTEES.  203 

thorize  an  agent  to  contract  for  its  sale.177  Though  this  rule  has  a 
very  wide  application,  there  are  several  exceptions  to  it:  First.  A 
trustee  may  delegate  his  duties,  if  authorized  so  to  do  by  the  trust 
instrument.178  Second.  A  trustee  may  employ  an  agent  to  admin- 
ister such  affairs  as  an  ordinarily  prudent  man,  acting  in  his  own  be- 
half, would  in  the  usual  course  of  business  commit  to  an  agent.179 
This  exception  is,  of  course,  subject  to  the  limitation  that  the  agent 
must  not  be  employed  outside  of  the  ordinary  scope  of  his  business.180 

SAME— INVESTMENTS. 

135.  "When  the  trust  money  cannot  be  applied,  •within  a 
reasonably  short  time,  to  the  purposes  of  the  trust,  it  is 
the  duty  of  the  trustee  to  make  the  fund  productive  to  the 
cestui  que  trust,  by  the  investment  of  it  in  some  propei 
security.181 

Since  the  trustee  must  act  with  a  view  solely  to  the  benefit  of  the 
cestui  que  trust,  it  is  his  duty  to  keep  invested  the  trust  funds  so 
as  to  yield  an  income  to  the  cestui  que  trust.  A  reasonable  time  after 
coming  into  possession  of  trust  funds,  generally  six  months,  is  allowed 
to  the  trustee  to  make  the  investment;  and  after  that  time  he  is 
prima  facie  chargeable  with  interest  thereon.182  In  making  the  in- 
vestment, the  trustee  must,  of  course,  conform  to  the  directions  con- 
tained in  the  instrument  creating  the  trust.183  If  that  is  silent,  the 
general  rule  again  applies  that  he  must  act  with  the  care  that  an 
ordinarily  prudent  man  would  take  if  he  were  minded  to  make  an 
investment  for  the  benefit  of  other  people  for  whom  he  felt  morally 
bound  to  provide, — not  such  care  as  a  prudent  man  would  take  if 
he  had  only  himself  to  consider.184    This  necessarily  excludes  all 

i«  Sebastian  v.  Johnson,  72  111.  2S2;   City  of  St.  Louis  v.  Priest,  SS  Mo.  612. 
"8  Kilbee  v.  Sneyd,  2  Moll.  199,  200. 
179  Speight  v.  Gaunt,  9  App.  Cas.  1. 
i8o  Fry  v.  Tapson,  28  Ch.  Div.  268. 
isi  Lewin,  Trusts,  p.  306. 

182  Lent  v.  Howard,  89  N.  Y.  169;  Crosby  v.  Merviam,  31  Minn.  342,  17  N. 
W.  950. 

183  2  Pom.  Eq.  Jur.  §  1075. 

i8*Whiteley  v.  Learoyd,  33  Ch.  Div.  347,  355;   King  v.  Talbot,  40  N.  Y.  76; 


204  PROPERTY    IN    EQUITY TRUSTS.  [Ch.   8 

speculation,  all  investments  for  an  uncertain  and  doubtful  use  in 
the  market,  and,  of  course,  everything  that  does  not  take  into  view 
the  nature  and  object  of  the  trust,  and  the  consequence  of  a  mistake 
in  the  selection  of  the  investment  to  be  made.185 

In  England,  no  rule  is  better  settled  than  that  a  trustee  cannot 
lend  trust  funds  on  mere  personal  security;186  and  Lord  Kenyon  said 
that  it  "ought  to  be  rung  in  the  ears"  of  every  one  who  acts  in  the 
character  of  trustee.187  The  same  rule  prevails  in  the  United  States, 
though  it  is  not  so  stringent  and  invariable  as  in  England.188  Thus, 
in  Massachusetts  and  several  other  states,  a  trustee  may  invest  in 
the  stock  of  private  corporations.189  Generally,  trustees  are  required 
to  invest  trust  funds  in  real-estate  or  government  securities,1"0 
though  investments  in  bonds  of  municipal  corporations  are  also  per- 
mitted.191 In  England,  trustees  are  advised  not  to  advance  more 
than  two-thirds  of  the  actual  value  of  an  estate  on  mortgage  se- 
curity; 192  and  with  us,  as  well  as  in  England,  loans  on  second  mort- 
gages are  regarded  with  disfavor.193 

SAME— LIABILITY  FOR   ACTS    OF   COTRUSTEE. 

136.  A  trustee  is  liable  for  the  acts  or  defaults  of  a  co- 
trustee, in  which,  he  has  himself  participated,  or  "which  he 
has  permitted  or  aided  by  his  own  negligence. 

Peckham  v.  Newton,  15  R.  I.  321,  4  Atl.  758;   Waller  v.  Catlett,  83  Va.  200; 
Harvard  College  v.  Amory,  9  Pick.  447,  4G1. 
iss  King  v.  Talbot,  40  N.  Y.  76,  80. 

186  Terry  v.  Terry,  Finch,  Prec.  273;   Darke  v.  Martyn,  1  Beav.  525. 

187  Holmes  v.  Dring,  2  Cox,  1. 

iss  Judge  of  Probate  v.  Mathes,  60  N.  H.  433;  Clark  v.  Garfield,  8  Allen,  427. 

189  Harvard  College  v.  Amory,  9  Pick.  440;  New  England  Trust  Co.  v.  Eaton, 
140  Mass.  532,  4  N.  E.  09;  McCoy  v.  Horwitz,  02  Md.  183;  Smyth  v.  Burns, 
2."  Miss.  422;  Peckham  v.  Newton,  15  R.  I.  321,  4  Atl.  758.  Contra,  King  v. 
Talbot,  40  N.  Y.  70;  Tucker  v.  State,  72  Ind.  242;  Hemphill's  Appeal,  18  Pa. 
St.  305. 

190  Ormiston  v.  Olcott,  84  N.  Y.  339,  343;   Perry,  Trusts,  §§  452,  458. 
i9i  Perry,  Trusts,  §  450. 

192  Lewin,  Trusts,  p.  325. 

193  Drosier  v.  Brereton,  15  Beav.  221;  Tuttle  v.  Gilmore,  30  N.  J.  Eq.  617; 
Williams  v.  McKay,  40  N.  J.  Eq.  25,  18  Atl.  824. 


Ch.   8]  DUTIES    AND    LIABILITIES    OF    TRUSTEES.  205 

This  rule  was  established,  after  great  consideration,  in  the  case  of 
Townley  v.  Sherborne,194  in  the  reign  of  King  Charles  I.  It  has 
been  adopted  in  the  United  States,195  and  it  applies  to  all  persons 
acting  in  the  capacity  of  trustees,  such  as  executors.196  The  material 
question,  therefore,  nowadays,  is  what  conduct  will  render  a  trustee 
liable  for  breach  of  trust  committed  by  a  cotrustee?  The  general 
rule  is  that  a  trustee  is  responsible  for  a  breach  of  trust  committed 
by  his  cotrustee  which  his  own  negligence  has  rendered  possible,  or 
with  which  he  failed  to  interfere  after  obtaining  knowledge  that  it 
was  being  committed.197  Still  more  certainly  a  trustee  or  executor 
who  is  guilty  of  any  fraud  in  the  matter  of  the  trust  will  not  be  able 
to  escape  liability  by  throwing  the  blame  on  his  colleague  in  the 
office.198 

From  the  rule  that  a  trustee  cannot  delegate  his  powers,  it  follows 
that  a  trustee  who  places  trust  funds  into  the  power  of  a  cotrustee 
is  liable  for  their  loss  caused  by  the  bankuptcy  or  embezzlement  of 
the  cotrustee.199  But  this  rule  does  not  apply  when  the  money  is 
remitted  to  the  cotrustee  in  the  usual  course  of  business,  as,  for  ex- 
ample, to  pay  a  debt  to  a  creditor  residing  in  the  cotrustee's  neigh- 
borhood.200 

There  has  been  some  conflict  of  authority  as  to  the  liability  of  a 
trustee  who  has  joined  his  cotrustee  in  a  receipt  for  trust  money  paid 
the  latter.  The  modern  rule  is  that,  if  the  signature  of  all  the  trus- 
tees is  formally  necessary  to  the  receipt,  the  signature  of  a  trustee 
to  whose  hand  the  money  does  not  come  will  not  alone  render  him 

104  Bridg.  35,  2  White  &  T.  Lead.  Cas.  Eq.  173S. 

195  Peter  v.  Beverly,  10  Pet.  532;  English  v.  Newell,  42  N.  J.  Eq.  82,  6  Atl. 
505;  Vandever's  Appeal,  8  Watts  &  S.  405;  Estate  of  Fesmire,  134  Ta.  St. 
67,  19  Atl.  502. 

las  Littlehales  v.  Gascoine,  3  Brown,  Ch.  74;  Sutherland  v.  Brush,  7  Johns. 
Ch.  17;   McKim  v.  Aulbaeh,  130  Mass.  481;   Ormiston  v.  Olcott,  S4  N.  Y.  339, 

34G;  Irwin's  Appeal,  35  Pa.  St.  294. 

197  Mucklow  v.  Fuller,  Jac.  198;    Booth  v.  Booth,  1  Beav.  125;    Richards  v. 

Seal,  2  Del.  Ch.  266;  In  re  Niles,  113  N.  Y.  547,  21  N.  E.  6S7;  Pirn  v.  Downing, 
11  Serg.  &  R.  71;   Crane  v.  Hearn,  26  N.  J.  Eq.  378. 

198  Butler  v.  Butler,  5  Ch.  Div.  554;   Hinson  v.  Williamson,  74  Ala.  180. 

199  Bruen  v.  Gillet,  115  N.  Y.  10,  21  N.  E.  676  (trustee  held  liable  for  moneys 
deposited  with  cotrustee,  a  private  banker);  Langford  v.  Gascoyne,  11  Ves. 
333. 

200  Bacon  v.  Bacon,  5  Ves.  331. 


206  PEOPEBTY    IN    EQUITY TRUSTS.  [Cll.   8 

liable  to  account  for  it.201  It  is  but  reasonable  that,  in  a  case  in 
which  he  has  no  power  to  refuse  to  sign,  his  signature,  without  more, 
should  not  fix  him  with  liability.  But,  on  the  other  hand,  a  person 
who  joins  voluntarily  in  a  receipt  in  which  his  concurrence  is  not 
formally  required,  and  whose  interference  is  therefore  unnecessary, 
is  to  be  considered  as  assuming  a  power  over  the  fund,  and  is  there- 
fore  answerable  for  the  application  thereof,  as  far  as  it  is  connected 
with  the  particular  transaction  in  which  he  joins.202 

SAME—  COMPENSATION. 

137.  In  England,  a  trustee  is  not  allowed  any  compen- 
sation for  his  time  and  trouble  in  executing  the  trust,  but 
in  the  United  States  he  is  allowed  a  reasonable  compensa- 
tion; and  in  both  countries  trustees  will  be  reimbursed  for 
all  proper  expenses  out  of  pocket. 

The  English  rule  is  a  deduction  from  the  principle  that  equity 
will  not  permit  a  trustee  to  make  a  profit  out  of  his  trust.  It  mat- 
ters not  to  what  extent  the  trustee  may  have  devoted  himself  to  the 
duties  of  the  trust,  or  to  what  extent  the  trust  estate  has  thereby 
been  benefited;  the  trustee  can  claim  no  compensation  for  his  per- 
sonal trouble  or  loss  of  time.203  The  only  exception  that  exists  is 
where  the  settlor  of  the  trust  authorizes  the  trustee  to  charge  for 
his  services.204  The  English  rule  prevails  in  Delaware,205  and  per- 
haps in  Ohio 200  and  Illinois; 207  but  in  all  the  other  states  trustees  are 
entitled  to  compensation  for  their  time  and  trouble,  either  by  way 
of  a  gross  sum,  or  in  the  form  of  commissions  on  the  property  under 
their  care.208 

201  Brice  v.  Stokes.  11  Ves.  319,  2  White  &  T.  Lead.  Cas.  Eq.  1742;  Stowe  v. 
Bowen,  99  Mass.  194;  McKim  v.  Aulhach,  130  Mass.  481;  Griffin  v.  Macaulay, 
7  Grat.  47G. 

202  Brice  v.  Stokes,  11  Ves.  319,  2  White  &  T.  Lead.  Cas.  Eq.  1742. 

203  Robinson  v.  Pett,  3  P.  Wms.  2-19,  2  White  &  T.  Lead.  Cas.  Eq.  512;  Brock- 
sopp  v.  Barnes,  5  Madd.  90;   Barrett  v.  Hartley,  L.  R.  2  Eq.  789. 

204  Webb  v.  Earl  of  Shaftesbury,  7  Ves.  480;   Baker  v.  Martin,  8  Sim.  25. 

205  Egbert  v.  Brooks,  3  Har.  (Del.)  112;  State  v.  Piatt,  4  Har.  (Del.)  154. 

206  Gilbert  v.  Sutliff,  3  Ohio  St.  149. 

207  Constant  v.  Matteson,  22  111.  54G. 

208  2  Perry,  Trusts,  §S  U1G,  'J17. 


Oh.   8]  REMEDIES    OF    CESTUI    QUE   TRUST.  207 

In  both  countries,  trustees  are  allowed  all  proper  expenses  out  of 
pocket,  whether  provided  for  in  the  instrument  creating  the  trust 
or  not.209  Traveling  expenses,210  legal  expenses,211  and  proper  out- 
lays for  improvement  of  the  property212  are  allowed  the  trustee.  So, 
he  will  be  allowed  for  salaries  and  commissions  paid  to  an  agent  em- 
ployed in  good  faith  in  administering  the  trust.213  But,  while  a  trus- 
tee is  allowed  expenses  incurred  in  the  employment  of  attorneys,  yet, 
if  he  is  himself  an  attorney,  no  compensation  will  be  allowed  him 
for  professional  services  performed  by  himself,  on  the  principle  that 
he  cannot  use  his  position  so  as  to  make  profit  for  himself;  and  this 
rule  applies  as  well  in  the  United  States  as  in  England.214 

Not  only  is  the  trustee  entitled  to  reimbursement  for  his  proper 
expenses,  but  he  has  a  lien  on  the  trust  estate  to  secure  them,  which 
must  be  satisfied  before  the  cestui  que  trust  can  compel  a  reconvey- 
ance from  the  trustee.215 

REMEDIES     OF    CESTUI    QUE    TRUST— FOLLOWING    TRUST 

ESTATE. 

138.  Where  trust  property  has  been  wrongfully  disposed 
of  by  the  trustee,  the  cestui  que  trust  may  assert  his 
right  to  the  specific  property  in  two  'ways: 

(a)  He  may  follow  it  into  the  hands  of  the  person  to 
whom  it  has  been  wrongfully  conveyed  by  the 
trustee,  unless  such  person  is  a  bona  fide  pur- 
chaser for  value  without  notice  of  the  trust. 

209  Hide  v.  Haywood,  2  Atk.  126;  Worrall  v.  Harford,  8  Ves.  4,  8;  Wilkin- 
son v.  Wilkinson,  2  Sim.  &  S.  237;  Downing  v.  Marshall,  37  N.  Y.  380,  389; 
Rensselaer  &  S.  R.  Co.  v.  Miller,  47  Vt.  146;  Hobbs  v.  McLean,  117  U.  S.  5G7, 
6  Sup.  Ct.  870;  Reynolds  v.  Cridge,  131  Pa.  St  189,  18  Atl.  1010;  Towle  v. 
Mack,  2  Vt.  19. 

210  Ex  parte  Lovegrove,  3  Deac.  &  C.  763. 

211  Downing  v.  Marshall,  37  N.  Y.  380;  McElhenny's  Appeal,  46  Pa.  St.  347; 
Brady  v.  Dilley,  27  Md.  570. 

212  Quarrell  v.  Beckford,  1  Madd.  269,  282. 

213  Hopkinson  v.  Roe,  1  Beav.  180;  Parker  v.  Johnson,  37  N.  J.  Eq.  366. 
21*  Collier  v.  Munn,  41  N.  Y.  145;    In  re  Corsellis,  34  Ch.  Div.  675. 

215  in  re  Exhall  Coal  Co.,  35  Beav.  449;  Stott  v.  Milne,  25  Ch.  Div.  710; 
New  v.  Nicoll,  73  N.  Y.  127;  Ellig  v.  Naglee,  9  Cal.  685;  Beatty  v.  Clark,  20 
Cal.  11,  30;  Johnson  v.  Leman,  131  111.  609,  23  N.  E.  435;   Foxworth  v.  White, 


208  PROPERTY    UJ    EQUITY — TRUSTS.  [Ch.  S 

(b)  He  may  attach  and  follow  the  property  that  has 
been  substituted  for  the  trust  estate  so  long  as 
the  substituted  property  can  be  traced. 

I  Trust  Funds  in  Stranger's  Hands. 
One  who  purchases  trust  property  with  notice  of  the  trust  is  con- 
sidered in  equity  as  a  constructive  trustee,  and  subject  to  all  the 
liabilities  of  a  trustee.216  If  the  trust  property  is  a  nonnegotiable 
chose  in  action,  such  as  a  bond,  the  purchaser  takes  subject  to  all 
equities,  whether  he  had  notice  or  not.  As  to  all  other  classes  of 
property,  however,  a  purchaser  who  in  good  faith  acquires  the 
legal  title  for  value  without  notice  of  the  trust  will  be  protected,21* 
but  not  if  he  is  a  mere  volunteer.218  In  short,  the  various  rules  re- 
lating to  bona  fide  purchasers  govern  in  determining  the  liability  of 
purchasers  of  trust  property.219 

Following  Trust  Funds  in  Changed  State. 

A  trustee  is  charged  with  the  duty  of  keeping  trust  funds  separate 
and  distinct  from  his  own  personal  funds.  If  he  mixes  trust  funds 
with  his  own,  he  is  clearly  liable  to  the  cestui  que  trust  for  so  much 
of  the  mixed  funds  as  he  cannot  prove  to  be  his  own.220  If  the 
mingled  fund  is  lost  by  accident  or  otherwise,  the  trustee  must  make 
good  the  loss;  as  where  he  deposits  trust  moneys  to  his  individual 
account  in  a  bank  which  afterwards  fails.221     If  he  purchases  land 

72  Ala.  224;  Haydel  v.  Hurck,  72  Mo.  253;  Stewart  v.  Fellows,  128  111.  4S0. 
20  X.  E.  657. 

2i6  Rolfe  v.  Gregory,  4  De  Gex,  J.  &  S.  576;  Caldwell  v.  Carrington,  9  Pet. 
86.  .Tones  v.  Shaddock,  41  Ala.  2G2;  Ryan  v.  Doyle,  31  Iowa,  53;  Smith  v. 
Walser,  40  Mo.  250 

2ii  Bassett  v.  Xosworthy,  Cas.  t.  Finch.  102,  2  White  &  T.  Lead.  Cas.  Eq.  1; 
Dillaye  v.  Commercial  Bank,  51  N.  Y.  345. 

218  Mansell  v.  Mansell,  2  P.  Wms.  6S1;  Lyford  v.  Thurston,  16  N.  H.  399; 
Barr  v.  Cubhage,  52  Mo.  404. 

219  See  ante,  95  et  seq. 

220  Fellows  v.  Mitchell,  1  P.  Wms.  83;  Mason  v.  Morley,  34  Beav.  475;  Mor- 
rison v.  Kinstra,  55  Miss.  71;  Atkinson  v.  Ward,  47  Ark.  533,  2  S.  W.  77;  Page 
y.  Holman,  82  Ky.  573. 

22i  The  rule  is  the  same  whether  or  not  the  trustee  has  funds  of  his  own  in 
the  bank.  Williams  v.  Williams,  55  Wis.  300,  12  N.  W.  465,  and  13  N.  W. 
274;  Norris  v.  Hero,  22  La.  Ann.  605;  Naltner  v.  Dolan,  10S  Ind.  500,  8  N.  E. 
2S9. 


Ch.   8]  REMEDIES    OF    CESTUI    QUE    TRUST.  209 

partly  with  his  own  money  and  partly  with  trust  money,  the  cestui 
que  trust  has  clearly  a  lien  on  the  whole  estate  for  the  amount  of 
his  fund.222  Difficulties,  however,  arise  where  the  trust  property 
has  been  disposed  of,  and  third  persons,  such  as  creditors  of  the 
trustee,  assert  a  claim  to  the  proceeds.  Here  the  rule  stated  in  the 
black-letter  text  applies:  The  cestui  que  trust  may  attach  and  fol- 
low the  substituted  property  so  long  as  it  can  be  traced  or  identified 
as  arising  out  of  the  trust  estate ;  it  makes  no  difference  whether  the 
disposition  was  rightfully  or  wrongfully  made  by  the  trustee.223  In 
some  of  the  earlier  cases  it  seems  to  have  been  held  that  if  the  trust 
property  was  converted  into  money,  and  that  money  mingled  with 
other  money  of  the  trustee,  then  the  right  of  the  cestui  que  trust  to 
follow  the  specific  proceeds  was  lost,  because  money  has  no  earmark 
by  which  it  can  be  identified.224  This  is  no  longer  the  law,  and  the 
modern  rule  is  that  a  cestui  que  trust  who  can  trace  the  proceeds 
of  the  trust  estate  into  a  fund  deposited  by  the  trustee  in  his  own 
name  is  entitled  to  a  charge  on  that  fund,  which  takes  precedence 
over  the  claims  of  the  general  creditors  of  the  trustee.225 

SAME— PERSONAL    REMEDIES. 

139.  A  breach  of  trust  by  a  trustee  creates  a  personal 
obligation  of  the  nature  of  a  simple  contract  debt,  -which 
may  be  enforced  against  the  trustee  or  his  estate  in  a 
proper  proceeding. 

222  Lane  v.  Dighton,  Amb.  409;  Hopper  v.  Conyers,  L.  R.  2  Eq.  549;  Brazel 
v.  Fair,  26  S.  C.  370,  2  S.  E.  293;  Houghton  v.  Davenport,  74  Me.  590. 

223  Knatchbull  v.  Hallett,  13  Ch.  Div.  696;  Van  Alen  v.  American  Nat 
Bank,  52  N.  Y.  1;  Bundy  v.  Town  of  Monticello,  84  Ind.  119. 

224  Whitecomb  v.  Jacob,  1  Salk.  161;   Ex  parte  Dale,  11  Ch.  Div.  772. 

225  Knatchbull  v.  Hallett,  13  Ch.  Div.  696;  Central  Nat.  Bank  v.  Connecticut 
Mut.  Life  Ins.  Co.,  104  U.  S.  54;  Van  Alen  v.  American  Nat.  Bank,  52  N.  T. 
1;  Third  Nat  Bank  v.  Stillwater  Gas  Co.,  36  Minn.  75,  30  N.  W.  440;  Englar 
v.  Offutt,  70  Md.  78,  16  Atl.  497.  Not  necessary  to  trace  trust  fund  into  specific 
property,  but  only  into  estate  of  trustee.  McLeod  v.  Evans,  66  Wis.  409,  23 
N.  W.  173,  214;  Peak  v.  Ellicott,  30  Kan.  156,  1  Pac.  499;  Harrison  v.  Smith, 
83  Mo.  210.  See,  however,  Cavin  v.  Gleason,  105  N.  Y.  256,  11  N.  E.  504;  Con- 
tinental Nat.  Bank  v.  Weems,  69  Tex.  489,  6  S.  W.  802;  Appeal  of  Hopkins 
(Pa.  Sup.)  9  Atl.  867. 

BQ  JUR.— 14 


210  PROPERTY    IN    EQUITY TRUSTS.  [Cll.   8 

If  the  trustee  is  solvent,  an  equitable  action  to  compel  compensa- 
tion for  the  loss  which  the  trust  estate  has  sustained  is  the  proper 
and  effective  remedy.228  Such  action  may  be  brought,  not  only 
against  the  trustee,  but  against  his  representatives.22'  The  claim, 
however,  ranks  only  as  a  simple  contract  debt,228  unless  the  trust  in- 
strument  contains  a  covenant,  express  or  implied,  for  the  payment 
of  the  trust  fund,  and  has  been  executed  by  the  trustee.229  If  the 
trustee  becomes  insolvent,  his  indebtedness  to  the  trust  is  provable 
against  his  estate.230  In  all  cases  the  cestui  que  trust  is  entitled 
to  recover  an  amount  which  will  fully  reimburse  him  for  the  loss 
Hisrained  by  the  breach.231 

The  remedy  of  a  cestui  que  trust  who  is  sui  juris  may  be  barred 
by  his  acquiescence  or  concurrence;232  but  persons  under  disability 
do  not  lose  their  remedy  unless  they  have  by  their  own  fraud  induced 
the  breach  of  trust.233  Misrepresentation  or  concealment  by  the 
trustee  bars  the  defense  of  acquiescence,  and  vitiates  a  release  given 
by  the  cestui  que  trust.23* 

SAME— REMOVAL  OF  TRUSTEE. 

140.  Where  a  trustee  has  been  guilty  of  such  acts  or 
omissions  as  endanger  the  trust  property,  or  show  a  want 

226  Long  v.  Fox.  100  111.  44;  Oliver  v.  Piatt,  3  How.  333;  Lathrop  v.  Bamp- 
ton.  31  Cal.  17;  Calhoun  v.  Burnett,  40  Miss.  599. 

227  Devaynes  v.  Robinson,  24  Beav.  86. 

22s  Vernon  v.  Vawdry,  2  Atk.  119;  Little  v.  Chadwick,  151  Mass.  109,  23 
N.  E.  1005. 

229  Isaacson  v.  Harwood,  3  Ch.  App.  225;  Richardson  y.  Jenkins,  1  Drew. 
477. 

230  Ex  parte  Shakeshaft,  3  Brown,  Ch.  197. 

231  2  Pom.  Eq.  Jur.  §  10S0;  Robinson  v.  Robinson,  1  De  Gex,  M.  &  G.  247; 
In  re  Grabowski's  Settlement,  L.  R.  6  Eq.  12;  Dil worth's  Appeal,  108  Pa.  St. 
92;  Zimmerman  v.  Fraley,  70  Md.  5G1,  17  Atl.  560;  Rowley  v.  Towsley,  53 
Mich.  329,  19  N.  W.  20. 

232Brice  v.  Stokes,  11  Ves.  319;  Walker  v.  Symonds,  3  Swanst  1,  61;  Zim- 
merman v.  Fraley,  70  Md.  564,  17  Atl.  560;  McCoy  v.  O'Donnell,  56  Md.  197; 
Pope  v.  Farnsworth,  146  Mass.  339,  16  N.  E.  262;  Butterfield  v.  Cowing,  112 
N.  Y.  486,  20  N.  E.  369. 

233  Lord  Montford  v.  Lord  Cadogan,  19  Ves.  636,  639,  640. 

234  Adams  v.  Clifton,  1  Russ.  297;  Jones  v.  Lloyd,  117  111.  597,  7  N.  E.  119; 
Shartel's  Appeal,  64  Pa.  St.  25. 


Ch.   8]  REMEDIES    OF    CESTUI   QUE    TRUST.  211 

of  honesty  or  of  proper  capacity  to  execute  the  duties  of 
the  trust,  a  court  of  equity  'will  remove  him,  and  appoint 
a  successor. 

While,  on  the  one  hand,  a  trustee  who  accepts  the  office  cannot 
relinquish  it  at  will,  unless  permitted  by  the  trust  instrument,235  and, 
on  the  other,  the  cestui  que  trust  cannot  at  will  dismiss  him,  a  court 
of  equity  has  inherent  jurisdiction  to  remove  a  trustee,  and  appoint 
another,  whenever  such  step  is  desirable  for  the  welfare  of  the  ben- 
eficiaries and  the  trust  estate.236  A  reasonable  cause  for  equitable 
interference  must,  however,  be  shown.  Thus,  a  removal  will  not  be 
made  at  the  mere  caprice  of  the  cestui  que  trust,237  nor  on  the  ground 
of  an  honest  exercise  of  discretion  which  may  prove  to  be  prejudi- 
cial to  the  cestui  que  trust238  nor  even  for  mistake  in  the  execution 
of  his  duty.239  But  a  trustee  who  has  permanently  departed  out  of 
the  jurisdiction  of  the  court,240  or  has  become  insolvent,241  or  deals 
with  the  trust  property  for  his  own  advancement,242  or  suffers  a  co- 
trustee to  commit  a  breach  of  trust,243  will  be  removed. 

In  appointing  a  new  trustee,  the  court  will  be  guided  (1)  by  the 
wishes  of  the  creator  of  the  trust,  if  ascertainable ;  (2)  by  a  due  regard 
for  the  interests  of  all  parties  concerned,  not  favoring  any  particular 
class;  and  (3)  by  the  nature  of  the  trust  and  the  question  by  whose 
instrumentality  it  can  best  be  carried  into  execution.244 

235  Chalmer  v.  Bradley,  1  Jac.  &  W.  68. 

236  Story,  Eq.  Jur.  §  287;  Letter stedt  v.  Broers,  9  App.  Cas.  371. 

237  O'Keeffe  v.  Calthorpe,  1  Atk.  17.  Disagreements  not  sufficient.  Gibbes 
v.  Smith,  2  Rich.  Eq.  131.  Cessation  of  social  intercourse  between  trustee 
and  beneficiary  not  sufficient.     Nickels  v.  Philips,  18  Fla.  732. 

ass  Lee  v.  Young,  2  Younge  &  C.  Ch.  532. 

239  in  re  Durfee,  4  R.  I.  401;   Attorney  General  v.  Coopers'  Co.,  19  Ves.  192. 

240  O'Reilly  v.  Alderson,  8  Hare.  101;  Dorsey  v.  Thompson,  37  Md.  25; 
Ketchum  v.  Mobile  &  C.  R.  Co.,  2  Woods,  532,  Fed.  Cas.  No.  7,737.  See,  how- 
ever, Williams  v.  Nichol,  47  Ark.  254,  1  S.  W.  243. 

241  Bainbrigge  v.  Blair,  1  Beav.  495;   In  re  Barker's  Trusts,  1  Ch.  Div.  43. 

242  Ex  parte  Phelps,  9  Mod.  357;  Kraft  v.  Lohman,  79  Ala.  323;  Clemens 
v.  Caldwell,  7  B.  Mon.  171;  Lathrop  v.  Smalley,  23  N.  J.  Eq.  192. 

243  Ex  parte  Reynolds,  5  Ves.  707. 
»4«  In  re  Tempest,  1  Ch.  App.  487. 


212 


PliOPEttTY    IN    EQUITY MORTGAGES,   LIENS,  ETC. 


[Ch.  9 


CHAPTER  IX. 

PROPERTY  IN  EQUITY  (Continued)— MORTGAGES,   LIENS,  AND 
ASSIGNMENTS. 

141.  Real-Estate  Mortgages. 

142.  Absolute  Deed  as  Mortgage. 

143.  Conditional  Sale  or  Mortgage. 

144.  Assignment  of  Mortgage. 

145.  Transfer  of  Mortgaged  Land. 
146-147.  Foreclosure  of   Mortgage. 
148-149.  Redemption. 

150-151.  Mortgages  and  Pledges  of  Personalty. 

152.  Equitable  Liens. 

153.  Equitable    Mortgages. 

154.  Liens  Based  on  Considerations  of  Justice. 

155.  Vendor's  Lien. 

156.  Vendee's  Lien. 

157.  Charges  of  Debts  and  Legacies. 
158-159.  Assignments. 

160.  What  Assignments  Now  Recognized  at  Law. 

161-162.  Equitable  Assignments. 

163.  Assignment  Subject  to  Equities. 


REAL-ESTATE   MORTGAGES. 

141.  As  viewed  by  a  court  of  equity,  a  real-estate  mort- 
gage is  a  lien  or  charge  on  land  to  secure  the  payment  of 
a  debt.1 

On  its  face,  a  real-estate  mortgage  is  a  conveyance  of  an  estate  in 
land  by  a  borrower  of  money  to  the  lender,  with,  a  condition  that,  if 
the  loan  and  interest  be  repaid  on  a  day  certain,  the  lender  will  re- 
convey  it.  The  common-law  judges  held  that  a  bargain  is  a  bargain, 
and  that,  therefore,  if  the  condition  was  broken  by  nonpayment  of 
the  debt  and  interest  on  the  day  specified,  the  estate  of  the  mortgagee 
became  absolute  and  indefeasible,  however  much  the  land  might  ex- 
ceed in  value  the  sum  secured.2     It  does  not  appear  that  the  early 

i  Seton  v.  Slade,  7  Ves.  265,  273. 

2  Littleton  thus  describes  the  common-law  mortgage:  "If  a  feoffment  be 
made  upon  such  condition  that  if  the  feoffor  pay  to  the  feoffee  at  a  certain. 


Ch.  9]  REAL-ESTATE    MORTGAGES.  213 

chancellors  ventured  to  interfere  with  the  common-law  system,  ex- 
cept when  the  mortgagor's  default  happened  through  accident,  or 
because  of  the  fraud  of  the  mortgagee.3  However,  during  the  reign 
of  King  James  L,  the  court  of  chancery  took  the  view  that  security  of 
the  debt  was  the  main  object  of  the  transaction,  and  that,  if  this 
were  obtained, — if  repayment  of  principal,  interest,  and  costs  were 
offered, — the  mortgagee  should  abandon  his  hold  on  the  land.  This 
became  the  established  doctrine  during  the  reign  of  Charles  I.,4  and 
since  that  time  the  mortgagor  has  in  equity  been  vested  with  a  right 
to  redeem  at  any  time  after  default,  on  payment  of  principal  and  in- 
terest, unless  in  the  meantime  the  mortgagee  obtained  from  the  court 
of  chancery  a  decree  that  the  mortgagor  should  be  absolutely  fore- 
closed. The  mortgagor's  right  to  redeem  was  known  as  the  "equity 
of  redemption,"  and  was  regarded  as  an  equitable  estate,  which  might 
be  conveyed  or  devised,  and  which  descended,  as  real  estate.5 

No  sooner,  however,  was  the  equity  of  redemption  established, 
than  another  bold  decision  was  required  to  confirm  the  principle  in 
its  utility.  Creditors,  eager  to  regain  the  advantage  afforded  them 
by  the  common  law,  attempted  an  evasion  of  the  equitable  doctrine 
by  requiring  their  debtors  to  renounce  the  right  of  redemption  by  an 
express  stipulation  in  the  mortgage.  Equity,  however,  acting  on 
the  maxim  that  it  always  looks  at  the  substance  rather  than  the  form, 
frustrated  this  attempt,  by  establishing,  as  a  principle  never  to  be 
departed  from,  that  "once  a  mortgage  is  always  a  mortgage";  that 
an  estate  could  not  at  one  time  be  a  mortgage,  and  at  another  time 
cease  to  be  so  by  one  and  the  same  deed;  and  that,  whatever  clause 
or  covenant  there  might  be  in  a  conveyance,  yet  if,  upon  the  whole, 
it  appeared  to  have  been  the  intention  of  the  parties  that  such  con- 
veyance should  only  be  a  mortgage,  or  should  only  pass  an  estate 
redeemable,  equity  would  always  construe  it  so.8 

day,  etc.,  forty  pounds  of  money,  then  the  feoffor  may  re-enter:  In  this  case 
the  feoffee  is  called  tenant  in  mortgage.  *  *  *  If  the  feoffor  doth  not  pay, 
then  the  land  which  is  put  in  pledge,  upon  condition  for  the  payment  of  money, 
is  taken  from  him  forever;  *  *  *  and,  if  he  doth  pay  the  money,  then  the 
pledge  Is  dead  as  to  the  tenant"  Section  332. 
»  1  Spence,  p.  602. 

*  How  v.  Vigures,  1  Ch.  R.  32.     See,  also,  Toth.  132. 

b  Casborne  v.  Scarfe,  1  Atk.  603,  2  White  &  T.  Lead.  Cas.  Eq.  1945. 

•  Howard  v.  Harris,  1  Vera.  190,  2  White  &  T.  Lead.  Cas.  Eq.  1949. 


21  l  PROPERTY    IN    EQDITY MORTGAGES,    LIENS,   ETC.  [Ch.    9 

hi  working  out  this  system,  1  lie  court  of  chancery,  true  to  its 
methods  and  traditions,  did  not  attempt  to  directly  interfere  with 
the  common-law  system.  It  acted  in  personam  on  the  conscience 
of  the  mortgagee,  and  compelled  him  to  reconvey  the  legal  title  to  the 
mortgagor  whenever  the  latter  exercised  his  right  of  redemption.7 
The  two  systems,  therefore,  continued  to  exist,  side  by  side;  and 
even  in  equity  the  legal  title  of  the  mortgagee  was  recognized  so 
far  as  necessary  to  protect  his  security.8  Thus,  after  default,  equity 
would  not  enjoin  the  mortgagee  from  maintaining  ejectment  against 
the  mortgagor  for  the  possession  of  the  mortgaged  premises,8  and 
the  mortgagor  could  not  make  a  valid  lease  binding  on  the  mort- 
gagee.10 For  all  other  purposes,  however,  the  mortgagor  was  regard- 
ed as  the  actual  owner  of  the  estate.11 

Mortgages  in  United  States. 

Having  thus  briefly  considered  the  historical  development  of  the 
equitable  theory  regarding  mortgages,  wre  come  to  the  question,  how 
are  mortgages  regarded  in  the  United  States?  In  some  of  the  states 
the  equitable  theory  has  been  earned  to  its  logical  conclusion.  A 
mortgage  is  regarded  as  a  mere  lien  or  charge  on  land  to  secure  re- 
payment of  the  debt.  The  mortgage  does  not  vest  the  mortgagee 
with  any  title  to  the  land,  nor  has  he  a  right  to  take  possession,  even 
after  default.  His  only  right,  on  default,  is  to  bring  proceedings  for 
the  sale  of  the  land,  and  thus  obtain  a  satisfaction  of  the  mortgage 
out  of  the  proceeds,  accounting  to  the  mortgagor  for  the  surplus. 
This  is  substantially  the  system  in  California.12  Colorado,13  Florida,14 
Georgia,15  Indiana,16  Iowa,17  Kansas,18  Kentucky,19  Louisiana,20  Mich- 

t  Barrett  v.  Hinckley,  124  HI.  32,  14  N.  E.  863. 

s  1  Jones,  Mortg.  §11. 

»  Cholmondeley  v.  Clinton,  2  Mer.  359. 

io  Keech  v.  Hall,  Doug.  22. 

ii  1  Jones,  Mortg.  §  11. 

12  McMillan  v.  Richards,  9  Cal.  365;   Dutton  v.  Warschauer.  21  Cal.  609. 

is  Drake  v.  Root,  2  Colo.  6S5. 

«  McMahon  v.  Russell,  17  Fla.  09S;  Jordan  v.  Sayre,  29  Fla.  100,  10  South.  823. 

is  Vason  v.  Ball,  56  Ga.  268;   Carter  v.  Gunn,  64  Ga.  651. 

i8  Fletcher  v.  Holmes,  32  Ind.  497,  515. 

it  White  v.  Rittenmyer,  30  Iowa,  268. 

is  Chick  v.  Willetts,  2  Kan.  384. 

i9  Woolley  v.  Holt,  14  Bush,  788;   Taliaferro  v.  Gay,  78  Ky.  494 

20  Duclaud  v.  Rousseau,  2  La.  Ann.  168. 


Ch.   9]  REAL- EST  ATE    MORTGAGES.  215 

igan,21  Minnesota,22  Montana,23  Nebraska,24  Nevada,25  New  Mexico,28 
New  York,27  North  and  South  Dakota,28  Oregon,29  South  Carolina,30 
Texas,31  Utah,32  Washington,33  and  Wisconsin.34  In  the  other  states 
the  dual  English  system  prevails,  with  varying  modifications.  It 
may,  however,  be  stated  as  a  general  proposition,  that  in  these  states 
a  mortgage  is  regarded  as  a  conveyance  of  the  legal  title,  entitling 
the  mortgagee  to  possession  always  after  default,  and  sometimes 
even  before;  while  the  mortgagor  has  only  the  equity  of  redemption. 
This  system  prevails  in  Alabama,85  Arkansas,36  Connecticut,37  Dela- 
ware,88 Illinois,30  Maine,40  Maryland,41  Massachusetts,42  Mississippi,43 

21  Caruthers  v.  Humphrey,  12  Mich.  270;  Lee  v.  Clary,  38  Mich.  223. 

22  Adams  v.  Corriston,  7  Minn.  456  (Gil.  365). 

23  Fee  v.  Swingly,  6  Mont.  596,  13  Pac.  375. 

24  Kyger  v.  Ryley,  2  Neb.  20,  28;  McHugh  v.  Smiley,  17  Neb.  620,  20  N. 
W.  296. 

25  Gen.  St.  1885,  §  3284;  First  Nat.  Bank  v.  Kreig  (Nev.)  32  Pac.  641. 
as  Comp.  Laws  18S4,  §  1595. 

2T  Trustees  of  Union  College  v.  Wheeler,  61  N.  Y.  88;  Shattuck  v.  Bascom, 
105  N.  Y.  40,  12  N.  E.  283;  Packer  v.  Rochester  &  S.  R.  Co.,  17  N.  Y.  283. 

28  Rev.  Codes  1883,  §  1733. 

29  Thompson  v.  Marshall,  21  Or.  171,  27  Pac.  957;  Adair  v.  Adair,  22  Or.  115, 
29  Pac.  193. 

so  Navassa  Guano  Co.  v.  Richardson,  26  S.  C.  401,  2  S.  E.  307;   Hardin  v. 
Hardin,  34  S.  C.  77,  12  S.  E.  936. 
8i  Wright  v.  Henderson,  12  Tex.  43. 
32  Comp.  Laws  1876,  p.  478. 

83  Code  Wash.  1881,  §  546. 

84  Wood  v.  Trask,  7  Wis.  566;  Wisconsin  Cent.  R.  Co.  r.  Wisconsin  River 
Land  Co.,  71  Wis.  94,  36  N.  W.  837. 

35  Knox  v.  Easton,  38  Ala.  345;   Downing  v.  Blair,  75  Ala.  216. 

se  Kannady  v.  McCarron,  18  Ark.  166;   Fitzgerald  v.  Beebe,  7  Ark.  310. 

87  Chamberlain  v.  Thompson,  10  Conn.  243,  251. 

ss  Hall  v.  Tunnell,  1  Houst.  320;  Cornog  v.  Cornog,  3  Del.  Ch.  407,  416.  In 
Delaware  the  English  system  is  greatly  modified,  and  approximates  very 
nearly  to  that  in  force  In  the  first  class  of  states. 

39  Carroll  v.  Ballance,  26  IU.  9;  Barrett  v.  Hinckley,  124  111.  32,  14  N.  E.  863. 

40  Blaney  v.  Bearce,  2  Greenl.  132. 

41  Brown  v.  Stewart,  1  Md.  Ch.  87;  Annapolis  &  E.  R.  Co.  v.  Gantt,  39  Md. 
115. 

42  Ewer  v.  Hobbs,  5  Mete.  (Mass.)  1-3;  Howard  v.  Robinson,  5  Cush.  119, 
123. 

43  Carpenter  v.  Bowen,  42  Miss.  28;  Buckley  v.  Daley,  45  Miss.  338.  565. 
Here,  too,  the  English  system  is  greatly  modified. 


216  PROPERTY    IN    EQUITY MORTGAGES,  LIENS,  ETC.  [Cll.   9 

Missouri,44  New  Hampshire,48  New  Jersey,48  North  Carolina,47  Ohio,48 
Pennsylvania,40  Rhode  Island,60  Tennessee,51  Vermont,52  Virginia,  and 
West  Virginia.6" 

SAME— ABSOLUTE    DEED    AS    MORTGAGE. 

142.  A  deed  absolute  in  form  "will  in  equity  be  treated 
as  a  mortgage  if  it  "was  executed  to  secure  the  repayment 
of  a  loan  or  debt. 

The  presumption,  of  course,  is  that  a  deed  is  what  it  purports  to  be 
on  its  face;  but  equity  regards  substance,  and  not  form;  and,  if  it 
appears  that  the  parties  intended  the  deed  to  stand  as  security  for 
a  loan,  effect  will  be  given  to  such  intention  by  treating  the  deed 
as  in  all  respects  a  mortgage.54  Parol  evidence  is  admissible  to  show 
such  intention.  The  rule  forbidding  the  admission  of  parol  evidence 
to  vary  or  contradict  the  terms  of  a  written  instrument  does  not  for- 
bid an  inquiry  into  the  object  of  the  parties  in  executing  and  re- 

44  Johnson  v.  Houston,  47  Mo.  227;  Bailey  v.  Winn,  101  Mo.  649,  12  S.  W. 
1045. 

45  Brown  v.  Cram,  1  N.  H.  169;  Hobart  v.  Sanborn,  13  N.  H.  226;  Great 
Falls  Co.  v.  Worster,  15  N.  H.  412,  444. 

46  Sanderson  v.  Price,  21  N.  J.  Law,  637,  646;  Shields  v.  Lozear,  34  N.  J. 
Law,  496;  Yerner  v.  Betz,  46  N.  J.  Eq.  256,  19  Atl.  206. 

47  Hemphill  v.  Ross,  6b  N.  C.  477. 

48  Allen  v.  Everly,  24  Ohio  St.  97,  114. 
4»  Tryon  v.  Munson,  77  Pa.  St.  250. 

bo  Carpenter  v.  Carpenter,  6  R.  I.  542;   Waterman  v.  Matteson,  4  R.  I.  539. 
6i  Henshaw  v.  Wells,  9  Humph.  568;   Vance  v.  Johnson,  10  Humph.  214. 
52  Hagar  v.  Brainerd,  44  Vt  294;   Brunswick-Balke-Collender  Co.  v.  Herrick, 
63  Vt.  286,  21  Atl.  918. 

63  2  Minor,  Inst.  500-530.  Trust  deeds  which  vest  the  legal  title  in  the 
trustee  are  extensively  used  in  Virginia  and  West  Virginia. 

64  Beach,  Eq.  Jur.  §  406;  Peugh  v.  Davis.  96  U.  S.  332,  336;  Ensign  v.  En- 
sign, 120  N.  Y.  655,  24  N.  E.  942;  Helm  v.  Boyd,  124  El.  370,  16  N.  E.  85;  Cul- 
len  v.  Carey,  146  Mass.  50,  15  N.  E.  131;  Harper's  Appeal,  64  Pa.  St.  315; 
Turpie  v.  Lowe,  114  Ind.  37,  15  N.  E.  S34;  McMillan  v.  Bissell,  63  Mich.  66, 
29  N.  W.  737;  Madigan  v.  Mead,  31  Minn.  94,  16  N.  W.  539;  McMillan  v. 
Jewett,  85  Ala.  476,  5  South.  145;  Cake  v.  Shull,  45  N.  J.  Eq.  208,  16  Atl.  434; 
Becker  v.  Howard,  75  Wis.  415,  44  N.  W.  755;  Teal  v.  Walker,  111  U.  S.  242, 
4  Sup.  Ct.  420;  Pearce  v.  Wilson,  111  Pa.  St.  14,  2  Atl.  99;  Ross  v.  Brusie, 
70  Cal.  465,  11  Pac.  760. 


Ch.    9]  REAL-ESTATE    MORTGAGES.  217 

ceiving  the  instrument.55  Nor  does  the  admission  of  parol  evi- 
dence for  such  purpose  violate  the  statute  of  frauds,  which  can  never 
be  made  a  cover  for  fraud.56 


SAME— CONDITIONAL   SALE    OR    MORTGAGE. 

143.  A  sale  of  land,  'with  an  option  reserved  to  the 
vendor  to  repurchase  ■within  a  specified  time,  will  in 
equity  be  treated  as  a  mortgage,  if  the  conveyance  was 
intended  by  the  parties  to  stand  as  security  for  a  debt. 

A  loan  of  money  secured  by  a  mortgage  on  land,  and  a  sale  of 
land  with  an  option  reserved  to  the  vendor  to  repurchase  by  a  pay- 
ment of  a  specified  sum  to  the  vendee  within  a  designated  time, 
often  prima  facie  greatly  resemble  each  other;  and  yet  the  distinc- 
tion between  the  two  is  extremely  important  in  its  consequences.  In 
the  case  of  a  mortgage,  a  default  in  payment  at  the  time  stipulated 
does  not  bar  the  right  of  redemption;  but  in  case  of  a  conditional 
sale  the  vendor  must  exercise  his  option  to  repurchase  within  the 
time  limited,  or  it  is  gone  forever.57  The  intention  of  the  parties, 
as  ascertained  by  considering  their  situation  and  the  surrounding 
facts,  as  well  as  the  written  memorials  of  the  transaction,  furnishes 
the  criterion  for  the  distinction.58  If  it  appears  that  the  parties  in- 
tended the  sale  to  stand  merely  as  security  for  a  debt,  equity  will 
treat  the  transaction  in  all  respects  as  a  mortgage.59  Chancellor 
Kent  states  the  test  of  distinction  as  follows:  "If  the  relation  of 
debtor  and  creditor  remains,  and  a  debt  still  subsists,  it  is  a  mort- 
gage;   but  if  the  debt  be  extinguished  by  the  agreement  of  the 

bs  Peugh  v.  Davis,  96  U.  S.  332,  336;  Campbell  v.  Dearborn,  109  Mass.  130; 
Stinchfield  v.  Milliken,  71  Me.  567. 

se  Carr  v.  Carr,  52  N.  Y.  251,  260;  Klein  v.  McNamara,  54  Miss.  90;  Sewell 
v.  Price,  32  Ala.  97. 

57  Alderson  v.  White,  2  De  Gex  &  J.  97;  Turner  v.  Wilkinson,  72  Ala.  361. 

8=1  Cornell  v.  Hall,  22  Mich.  377,  3S3;  Smith  v.  Crosby,  47  Wis.  160,  2  N.  W. 
104;   Henley  v.  Hotaling,  41  Cal.  22. 

69  Schriber  v.  Le  Clair,  66  Wis.  579,  29  N.  W.  570,  889;  Jackson  v.  Lynch, 
129  El.  72,  21  N.  E.  580,  and  22  N.  E.  246;  Lift)  v.  Land  Syndicate,  24  Neb. 
692,  40  N.  W.  129;  White  v.  Megill  (N.  J.  Ch.)  18  Atl.  355;  Buse  v.  Page,  32 
Minn.  111.  19  N.  W.  736,  and  20  N.  W.  95. 


218  PROPERTY    IN    EQUITY MORTGAGER    LIENS,  ETC.  [Ch.   9 

parties,  or  the  money  advanced  is  not  by  way  of  loan,  and  the 
grantor  has  the  privilege  of  refunding,  if  he  pleases,  by  a  given  time, 
and  thereby  entitles  himself  to  a  reconveyance,  it  is  a  conditional 
s;il<'."00  In  cases  of  doubt,  courts  will  construe  the  transaction  as 
a  mortgage,  because  the  vendor  recovers  his  debt  with  legal  interest, 
and  the  danger  of  oppression  resulting  from  the  inability  of  the 
vendor  to  repurchase  within  the  time  limited  is  obviated.81 


SAME— ASSIGNMENT    OF    MORTGAGE. 

144.  As  viewed  by  a  court  of  equity,  the  debt  is  the 
principal  thing,  and  the  mortgage  an  accessory,  and  there- 
fore an  assignment  of  the  debt  carries  with  it  the  mort- 
gage.62 

In  those  states  where  the  legal  title  to  land  vests  in  the  mortgagee, 
a  deed  executed  with  due  formality  is,  of  course,  essential  to  vest 
the  legal  title  in  his  assignee.63  In  equity,  however,  where  the  mort- 
gage is  regarded  as  merely  a  lien  on  the  land,  an  assignment  of  the 
debt  operates  as  an  assignment  of  the  mortgage,  giving  the  assignee 
a  right  to  enforce  the  same.64  It  is,  of  course,  desirable  that  a  formal 
written  assignment  of  the  debt  and  mortgage  be  executed,  but  this 
is  not  necessary  to  the  validity  of  the  assignment.  Some  difficult 
questions  have  arisen  where  the  mortgage  debt  is  evidenced  by  sev- 
eral notes,  and  those  notes  have  been  assigned  to  different  persons. 
If  the  notes  mature  at  different  times,  some  of  the  courts  hold  that 

so  4  Kent,  Comm.  p.  145.  See,  also,  Kraemer  v.  Adelsberger,  122  N.  Y. 
467,  25  N.  E.  859;  Adams  v.  Pilcher,  92  Ala.  474,  8  South.  757;  Henley  v. 
Hotaling,  41  Cal.  22,  28. 

6i  Rapier  v.  Gulf  City  Paper  Co.,  77  Ala.  126,  134;  Roddy  v.  Brick,  42  N.  J. 
Eq.  218,  6  Atl.  80G;  Niggeler  v.  Maurin,  34  Minn.  119,  24  N.  W.  369. 

62  Carpenter  v.  Longan,  16  Wall.  271,  275. 

63  Sanders  v.  Cassady,  86  Ala.  246,  248,  5  South.  503;  Smith  v.  Kelley,  27 
Me.  237;  Adams  v.  Parker,  12  Gray,  53. 

6^  In  states  where  a  mortgage  is  merely  a  chattel  interest,  such  assignment  is 
treated  as  a  legal  assignment.  Sangster  v.  Love,  11  Iowa,  5S0;  Runyan  v. 
Mersereau,  11  Johns.  534;  Reeves  v.  Hayes,  95  Ind.  521.  In  the  other  states 
such  assignment  is  treated  as  an  equitable  assignment.  Keyes  v.  Wood,  21 
Vt  331;   Mayo  v.  Merrick,  127  Mass.  511;  Jordan  v.  Cheney,  74  Me.  359. 


Ch.  9]  REAL-ESTATE    MORTGAGES.  219 

the  respective  assignees  will  be  entitled  to  priority  according  to  the 
order  of  time  in  which  these  notes  mature,66  though  in  some  of  the 
states  it  is  held  that  all  the  assignees  stand  on  an  equality,  and  must 
share  the  proceeds  of  the  mortgaged  premises  pro  rata.68 

SAME— TRANSFER    OF    MORTGAGED   LAND. 

145.  "Where  mortgaged  premises  are  conveyed  subject 
to  the  mortgage,  the  land  continues  the  primary  fund  for 
the  payment  of  the  debt;  but  the  grantee  is  not  personally 
liable  unless  he  assumes  payment  of  the  mortgage. 

As  between  a  mortgagor  and  his  grantee  of  the  premises,  "subject 
to"  the  mortgage,  the  land  is  the  primary  fund  for  the  payment 
of  the  debt.  Consequently,  a  mortgagor  who  is  compelled  by  the 
mortgagee  to  discharge  the  debt  out  of  his  individual  property  is 
entitled  to  indemnity  out  of  the  mortgaged  premises.67  In  such  a 
case,  however,  the  grantee  is  not  personally  liable  for  the  mortgage 
debt.68 

But  a  grantee  who  covenants  in  the  deed,  not  merely  to  take  sub- 
ject to  the  mortgage,  but  to  assume  payment  of  the  mortgage  debt  as 
part  of  the  purchase  price,  becomes  the  principal  debtor,  and  the 
mortgagor  merely  a  surety; 69  and  should  the  mortgagee,  after  notice 
of  such  assumption,  release  the  grantee,  or  extend  the  time  of  pay- 

es  Leavitt  v.  Reynolds,  79  Iowa,  348,  44  N.  W.  567;  Lyman  v.  Smith,  21 
Wis.  674;  Winters  v.  Bank,  33  Ohio  St.  250;  Doss  v.  Ditmars,  70  Ind.  451; 
Herrington  v.  McCullum,  73  111.  476;  Mitchell  v.  Ladew,  36  Mo.  526.  In  Gran- 
ger v.  Crouch,  S6  N.  Y.  494,  499,  it  was  held  that  the  intention  of  the  parties 
is  controlling  on  the  question  of  priority. 

ee  Lovell  v.  Cragin,  136  U.  S.  147,  10  Sup.  Ct.  1024;  Fourth  Nat.  Bank's  Ap- 
peal, 123  Pa.  St.  484,  16  Atl.  779;  Penzel  v.  Brookmire,  51  Ark.  105,  10  S.  W. 
15;  Wilson  v.  Eigenbrodt,  30  Minn.  4,  13  N.  W.  907:  Jennings  v.  Moore,  83 
Mich.  231,  47  N.  W.  127. 

67  Johnson  v.  Zink,  51  N.  Y.  333;  Cleveland  v.  Southard,  25  Wis.  479;  Sweet- 
zer  v.  Jones,  35  Vt.  317;  Stevens  v.  Church,  41  Conn.  369;  Drury  v.  Holden, 
121  111.  130,  13  N.  E.  547. 

es  Belmont  v.  Coman,  22  N.  Y.  438;  Elliott  v.  Sackett,  10S  U.  S.  140,  2  Sup. 
Ct.  375;   Tichenor  v.  Dodd,  4  N.  J.  Eq.  454. 

69  Rice  v.  Sanders,  152  Mass.  108,  24  N.  E.  1079;  Snyder  v.  Robinson,  35 
Ind.  311;   Palmeter  v.  Carey,  63  Wis.  426,  21  N.  W.  793,  and  23  N.  W.  586. 


220  PBOPERTY    IN    EQUITY — MORTGAGES,  LIENS,  ETC.  [Ch.  9 

in.  nt  without  the  mortgagor's  consent,  the  latter  will  be  discharged 
from  liability,  just  as  any  other  surety.70  A  grantee  who  thus  as- 
sumes payment  of  the  mortgage  debt,  as  part  of  the  consideration, 
cannot  evade  liability  thereon  by  contesting  the  validity  of  the  mort- 
gage.71 

In  many  of  the  states  it  is  held  that  the  grantee's  personal  lia- 
bility may  be  enforced  in  an  action  at  law  by  the  mortgagee,  though 
he  was  not  a  party  or  a  privy  to  the  contract  in  which  the  grantee 
assumed  payment.  The  courts  holding  this  rule  base  it  on  the 
theory  that  the  person  for  whose  benefit  a  promise  is  made  may  en- 
force it,  though  he  be  a  stranger  to  the  contract  and  to  the  considera- 
tion; as  wThere  A.  transfers  property  to  B.,  and  B.  assumes  payment 
of  A.'s  debts  as  the  consideration  for  the  transfer,  the  creditors  of 
A.,  who  are  the  persons  beneficially  interested,  may  maintain  an 
action  at  law  directly  against  B.72  Other  courts,  however,  hold  that 
the  personal  liability  of  the  grantee  can  be  enforced  only  in  equity, 
on  the  theory  that,  since  the  mortgagor  is  merely  a  surety,  the  mort- 
gagee is  entitled  to  the  benefit  of  any  collateral  security  held  by  the 
surety  against  the  principal,  the  grantee;  and  that,  therefore,  the 
mortgagee  may  proceed  directly  against  the  latter  to  avoid  circuity 
of  action.73 

SAME— FORECLOSURE  OF  MORTGAGE. 

146.  In  the  English  system  of  mortgages,  foreclosure 
signifies  a  proceeding  in  chancery,  brought  by  the  mort- 
gagee,  -wherein   the   mortgagor's  right    of  redemption   of 

ToCalvo  v.  Davies,  73  N.  Y.  211,  215;  George  v.  Andrews,  60  Md.  26.  See, 
however,  Boardman  v.  Larrabee,  51  Conn.  39. 

7i  Crawford  v.  Edwards,  33  Mich.  354;  Ritter  v.  Phillips,  53  N.  Y.  586.  Pur- 
chaser cannot  set  up  usury  in  mortgage.  Cramer  v.  Lepper,  2G  Ohio  St  59; 
Hartley  v.  Harrison,  24  N.  Y.  170;  Bearce  v.  Barstow,  9  Mass.  45. 

"  Lawrence  v.  Fox,  20  N.  Y.  268;  Gifford  v.  Corrigan,  117  N.  Y.  257,  22 
N.  E.  750;  Follansbee  v.  Johnson,  2S  Minn.  311,  9  N.  W.  882;  Ayres  v.  Ran- 
dall, 10S  Ind.  595,  9  N.  E.  4G4;  Bassott  v.  Hughes,  43  Wis.  319;  Dean  v. 
Walker,  107  111.  540,  545;  Bay  v.  Williams,  112  111.  91;  Rockwell  v.  Bank,  31 
Neb.  128,  47  N.  W.  641. 

73  Crowell  v.  Hospital  of  St.  Barnabas,  27  N.  J.  Eq.  650;  Keller  v.  Ashford, 
133  U.  S.  610,  620,  10  Sup.  Ct.  494;  Osborne  v.  Cabell,  77  Va.  462. 


Ch.   9]  REAL-ESTATE    MORTGAGES.  221 

the  mortgaged  premises  is  barred  or  closed  forever.  This 
method  of  foreclosure  prevails  also  in  some  of  the  Amer- 
ican states,  and  is  known  as  "strict  foreclosure." 

147.  In  most  of  the  American  states,  foreclosure  means 
a  proceeding  having  for  its  object  a  sale  of  the  mortgaged 
lands,  so  that  the  proceeds  may  be  applied  in  satisfaction 
of  the  mortgage  debt.  This  sale  may  take  place  either 
by  virtue  of  a  judicial  decree,  or  by  virtue  of  a  power  of 
sale  contained  in  the  mortgage. 

Strict  Foreclosure. 

In  the  English  system  of  mortgages,  followed,  as  we  have  seen, 
in  some  of  the  American  states,  the  legal  title  to  the  land  is  regarded 
as  vested  in  the  mortgagee.  On  default  in  the  payment  of  the  mort- 
gage debt,  the  mortgagee  may  therefore  obtain  possession  of  the 
premises  by  the  legal  action  of  ejectment  or  the  writ  of  entry.  This 
method  prevails  in  England,  and  in  Maine,  New  Hampshire,  Massa- 
chusetts, and  Rhode  Island,74  The  mortgagor,  however,  possesses 
a  right  to  redeem  which  continues  for  an  indefinite  period.  To  cut 
off  this  right  of  redemption,  it  is  necessary  for  the  mortgagee  to 
bring  foreclosure  proceedings  in  equity.  The  English  practice  is  to 
order  an  accounting,  and  then  enter  a  decree  requiring  the  mort- 
gagor to  redeem  within  six  months,  or  be  forever  barred  of  his  right. 
If  a  default  is  so  made,  then  a  final  order  for  foreclosure  absolute  is 
made  on  motion  as  of  course.  This  mode  of  foreclosure  is  still  the 
usual  one  in  Connecticut  and  Vermont,  and  may  be  resorted  to  in 
Alabama,  California,  Illinois,  Massachusetts,  New  Jersey,  New  York, 
and  Wisconsin.75  In  all  the  other  states  it  is  practically  obsolete.76 
Foreclosure  by  Judicial  Sale. 

In  nearly  all  the  states  of  the  Union,  the  mortgagee,  on  default  in 
payment  of  the  mortgage  debt,  may  bring  a  suit  in  equity  which  has 
a  twofold  object :  (1)  A  sale  of  the  premises,  and  the  application  of 
the  proceeds  in  satisfaction  of  the  mortgage;  (2)  a  personal  judg- 
ment for  any  deficiency  against  all  persons  liable  for  the  mortgage 
debt."     Statutes  generally  require  the  action  to  be  brought  in  the 

i*  2  Jones,  Mortg.  §  1238.  to  id. 

to  2  Jones,  Mortg.  §§  1542-1556.  «  Wiltsie,  Mortg.  Forec.  §  11. 


222  PROPERTY    IN    EQUITY MORTGAGES,  LIENS,  ETC.  [Cb.  9 

count}'  where  the  land  lies.  The  owner  of  the  mortgaged  premises, 
whether  he  be  the  mortgagor  or  his  grantee,  is  a  necessary  party  de- 
fendant, since  its  object  is  to  divest  his  title.78  All  persons  who 
have  acquired  liens  or  incumbrances  on  the  mortgaged  premises  sub- 
sequent to  the  mortgage  are  proper  parties  defendant79  Prior  mort- 
gagees and  incumbrancers  should  not  be  joined,  because  their  rights 
cannot  be  affected  by  a  sale  under  a  junior  mortgage.80  The  decree 
of  foreclosure  directs  a  sale  of  the  land  to  be  made  by  the  proper  judi- 
cial officer.  On  such  sale,  the  purchaser  is  vested  with  the  title  which 
the  mortgagor  had  when  the  mortgage  was  executed  and  recorded,  as 
well  as  any  title  thereafter  acquired  by  him.81  If  the  price  bid  at 
the  sale  exceeds  the  mortgage  debt  and  costs  of  foreclosure,  the  sur- 
plus takes  the  place  of  the  land,  and  belongs  to  the  persons  whose 
estates  or  interests  in  the  land  were  cut  off  by  the  sale.82  If  the  pro- 
ceeds of  the  sale  do  not  equal  the  amount  of  the  mortgage  debt  and 
costs,  the  mortgagee  is  entitled  to  a  personal  judgment  for  deficiency 
against  all  persons  liable  for  the  mortgage  debt.83 
Foreclosure  by  Sale  under  Power. 

A  more  expeditious  method  of  foreclosure  exists  in  many  of  the 
states  of  this  country  as  well  as  in  England.84  Mortgages  at  the 
present  time  are  drawn  with  a  power  of  sale,  authorizing  a  sale  of  the 
premises  at  public  auction  on  default  in  payment  of  the  mortgage 
debt;  and  statutes  exist  prescribing  how  the  power  must  be  ex- 
ercised. These  statutes  generally  require  the  mortgagee  to  give 
public  notice  of  the  sale,  by  publication  for  a  specified  time,  in  the 
newspapers  of  the  county  where  the  land  is  located.85  The  mort- 
gagee must  exercise  his  power  of  sale  fairly  and  properly,  and  there- 

78  Landon  v.  Townshend,  112  N.  Y.  93,  98,  19  N.  E.  424;  Griffin  v.  Hodshire, 
119  Ind.  235,  21  N.  E.  741 ;   Hambrick  v.  Russell,  8G  Ala.  199,  201,  5  South.  298. 

79  Bearli.  Mod.  Eq.  §  r>00;  Kay  v.  Whittaker,  44  N.  Y.  5G5,  572;  Cheney  v. 
Patton,  134  111.  122.  25  N.  E.  792;  Verden  v.  Slocum,  71  N.  Y.  345. 

so  McCorab  v.  Spangler,  71  Cal.  423,  12  Pac.  347;  Goebel  v.  Iffla,  111  N.  Y. 
170.  177,  18  N.  E.  649;   Macloon  v.  Smith,  49  Wis.  200,  5  N.  W.  336. 

8i  Gaylord  v.  City  of  Lafayette,  115  Ind.  423,  17  N.  E.  899;  Barnard  v. 
Wilson,  74  Cal.  513,  16  Pac.  307. 

82  Clarkson  v.  Skidmore,  46  N.  Y.  301;  Lithauer  v.  Royle,  17  N.  J.  Eq.  40. 

ss  2  Jones,  Mortg.  §  1709. 

s*  2  Jones,  Mortg.  §  1764. 

so  id.  §  1S27;   Shillaber  v.  Robinson,  97  U.  S.  68. 


Ch.    9]  REAL-ESTATE    MORTGAGES.  223 

fore  he  cannot  buy  the  property  either  in  person  or  by  an  agent, 
unless  authorized  so  to  do  by  statute  or  by  the  power.88  As  in  the 
case  of  a  sale  under  a  judicial  decree,  the  purchaser  acquires  the 
mortgagor's  title  as  it  existed  when  the  mortgage  was  executed  and 
recorded,  as  well  as  any  title  subsequently  acquired,87  and  any  sur- 
plus arising  from  the  sale  must  be  accounted  for  to  the  persons  hav- 
ing estates  or  interests  in  the  land.88 

Concurrent  Remedies. 

In  addition  to  his  right  of  foreclosure,  the  mortgagee  may  maintain 
an  action  at  law  against  all  persons  liable  for  the  mortgage  debt, 
and  he  is  entitled  to  recover  the  amount  of  principal,  interest,  and 
costs.89  While  all  these  remedies  are  concurrent,  the  mortgagee  can- 
not retain  more  than  the  amount  of  his  claim;  and,  if  the  personal 
judgment  is  satisfied,  he  must  surrender  the  land.90 


SAME— REDEMPTION. 

148.  Any  person  who  has  an  interest  in  the  property 
subject  to  the  mortgage  may  redeem. 

149.  Redemption  can  be  made  only  from  the  mortgage 
debt  in  its  entirety;  and  consequently,  if  the  person  re- 
deeming is  not  primarily  liable  for  the  debt,  or  liable  for 
only  a  portion  thereof,  he  is  entitled  to  exoneration  or 
contribution  from  the  other  persons  liable. 

In  the  English  system  of  mortgages,  the  equity  of  redemption  sig- 
nifies the  right  of  the  mortgagor  to  pay  the  mortgage  debt  after  de- 
fault, and  thus  regain  possession  of  the  premises.    The  usual  method 

se  Martinson  v.  Clower,  21  Ch.  Div.  857;    Ezzell  v.  Watson,  83  Ala.  120,  3 
South.  309;  Very  v.  Russell,  65  N.  H.  646,  23  Atl.  522. 
8T  Doolittle  v.  Lewis,  7  Johns.  Ch.  45;  Sim  v.  Field,  66  Mo.  111. 

88  2  Jones,  Mortg.  §  1929;  Cook  v.  Basley,  123  Mass.  396;  Buttrick  v.  Went- 
worth,  6  Allen,  79;  Ballinger  v.  Bourland,  87  111.  513;  Brown  v.  Crookston 
Agricultural  Ass'n,  34  Minn.  545,  26  N.  W.  907. 

89  2  Jones,  Mortg.  §  1220;  Lichty  v.  McMartin,  11  Kan.  565;  Vansant  v. 
A  Union,  23  111.  30. 

»o  Burnell  v.  Martin,  2  Doug.  417;  2  Jones,  Mortg.  §  1215. 


224  PROPERTY    IN    EQUITY — MORTGAGES,  LIENS,  ETC.  [Ch.  9 

of  redemption  under  this  system  is  by  a  suit  in  equity,  and  in  his 
bill  the  mortgagor  tenders  the  amount  due  on  the  mortgage  debt.  A 
d<  cree  is  then  made  compelling  the  mortgagee  to  reconvey.  This 
method  of  redemption  prevails  in  those  states  where  the  dual  English 
system  exists.91 

In  most  of  the  states,  where  the  mortgage  vests  no  title  in  the 
mortgagee,  and  does  not  entitle  him  to  the  possession,  and  where 
the  mortgage  is  foreclosed  by  sale,  statutes  exist  conferring  on  the 
mortgagor,  and  those  claiming  under  him,  the  right  to  redeem  by 
paying  to  the  purchaser,  within  a  specified  time, — generally  a  year 
after  the  sale, — the  amount  of  his  bid,  with  interest.92  This,  of 
course,  is  a  substantially  different  form  of  redemption  from  that  ex- 
isting under  the  English  system. 

All  persons  having  an  interest  in  the  property  subject  to  the  mort- 
gage may  redeem.93  For  example,  judgment  creditors  of  the  mort- 
gagor,94 and  junior  mortgagees,95  may  redeem,  since  they  have  liens 
on  the  property.  The  mortgagor's  heirs  may  exercise  the  right,96  and 
so  may  his  grantee  if  the  premises  have  been  conveyed. 

The  land  must,  however,  be  redeemed  as  a  whole.  Since  the  entire 
premises  stand  as  security  for  the  whole  debt,  the  mortgagee  need  not 
accept  payment  in  installments,  and  cannot  be  compelled  to  release 
a  specific  portion  of  the  land  from  the  lien  of  the  mortgage.97 

si  2  Jones,  Mortg.  §  1093  et  seq. 

02  This  right  exists  in  Alabama,  Arkansas,  California,  Colorado,  Illinois,  In- 
diana, Iowa,  Minnesota,  Missouri,  Nevada,  New  Mexico,  North  Dakota,  Ore- 
gon, South  Dakota,  Tennessee,  and  Washington.  In  Michigan  the  sale  cannot 
take  place  until  a  year  after  the  bill  to  foreclose  is  filed,  and  in  Wisconsin  not 
until  a  year  after  the  decree.     See  2  Jones,  Mortg.  §  1051,  and  notes. 

93  Pearce  v.  Morris,  5  Ch.  App.  229. 

»4  Willard  v.  Finnegan,  42  Minn.  470,  44  N.  W.  9S5;  Bozarth  r.  Largent, 
12S  111.  95,  21  N.  E.  218;  Cramer  v.  Watson,  73  Ala.  127;  Mallalieu  v.  Wick- 
ham,  42  N.  J.  Eq.  207,  10  Atl.  880. 

»5Twombly  v.  (assidy,  82  N.  Y.  155;  Gaskell  v.  Viquesney,  122  Ind.  244, 
23  N.  E.  791;   Eewis  v.  Hinman,  5G  Conn.  55,  13  Atl.  143. 

»« Alexander  v.  Hill,  88  Ala.  487,  7  South.  238;  Hunter  v.  Dennis,  112  111. 
5G8;  Pym  v.  Bowreman,  3  Swanst.  241,  note;  Zaegel  v.  Kuster,  51  Wis.  31, 
7  N.  W.  781;   Chew  v.  Hyman,  10  Biss.  240,  7  Fed.  7. 

07  Meacham  v.  Steele,  03  111.  135;  Lamb  v.  Montague,  112  Mass.  353;  Spur- 
gin  v.  Adamson,  02  Iowa,  GG1,  18  N.  W.  293;  Coffin  v.  Tarker,  127  N.  Y.  117, 
■21  S.  E.  814. 


Ch.   9]  REAL-ESTATE    MORTGAGES.  225 

Contribution  and  Exoneration. 

Of  course,  it  frequently  happens  that  one  who  has  acquired  only 
a  portion  of  the  mortgaged  premises,  or  who  is  primarily  liable  for 
only  a  portion  of  the  mortgage  debt,  wishes  to  redeem.  He  must 
pay  the  whole  amount  of  the  mortgage  debt,  or  the  whole  amount 
bid  at  foreclosure  sale,  and  then  look  to  the  others  liable  with  him  for 
exoneration  or  contribution,  as  the  case  may  be.  If  the  equities  of 
the  parties  are  in  all  respects  equal,  then  the  others  must  contribute 
ratably  to  the  one  who  has  effected  the  redemption.  Thus,  where 
tenants  in  common  join  in  a  mortgage  on  the  entire  estate,  the  ten- 
ant who  redeems  may  compel  contribution  by  his  cotenant.98  And 
so,  where  the  mortgagor  conveys  the  mortgaged  premises  by  simul- 
taneous deeds  to  different  persons,  neither  of  whom  assumes  payment 
of  the  mortgage,  the  one  redeeming  may  enforce  contribution  from 
the  others." 

Where  the  equities  of  the  parties  are  unequal,  the  one  having  the 
superior  equity  is  entitled,  not  merely  to  contribution  from,  but  to 
exoneration  by,  the  one  having  the  inferior  equity.  Thus,  where  a 
mortgagor  conveys  a  portion  of  the  mortgaged  premises  by  a  deed 
in  which  the  grantee  does  not  assume  payment  of  the  mortgage,  the 
portion  in  the  mortgagor's  hands  is  primarily  liable  for  the  mort- 
gage debt;  and,  if  the  grantee  redeems,  he  may  enforce  the  entire 
mortgage  against  the  portion  of  the  premises  still  in  the  mortgagor's 
possession.100  So,  if  the  entire  premises  are  conveyed  at  different 
times  to  different  grantees,  the  maxim  which  applies  is:  Where 
the  equities  are  equal,  the  first  in  order  of  time  prevails;  and  hence 
the  rule  is  that,  as  between  the  grantees,  the  parcels  are  liable  in 
the  inverse  order  of  their  alienation.101 

ss  Chase  v.  Woodbury,  6  Cush.  143;  Damm  v.  Damm,  91  Mich.  424,  51  N. 
W.  10G9;   Aiken  v.  Gale,  37  N.  H.  501. 

99  Adams  v.  Smilie,  50  Vt.  1. 

ioo  Cheever  v.  Fair,  5  Cal.  337;  Hall  v.  Morgan,  79  Mo.  47;  Sargeant  v. 
Rowsey,  S9  Mo.  617,  1  S.  W.  823.  The  converse  of  this  proposition  is  also 
true:  If  the  mortgagor  redeems,  he  cannot  enforce  contribution  from  the 
grantee.  2  Jones,  Mortg.  §  1091;  Wallace  v.  Stevens,  64  Me.  225;  Henderson 
v.  Truitt,  95  Ind.  309. 

ioi  National  Sav.  Bank  v.  Creswell,  100  U.  S.  630;  Moore  v.  Shurtleff,  128 
111.  370,  21  N.  E.  775;  Clowes  v.  Dickinson,  5  Johns.  Ch.  235,  240;  Milligan'a 
Appeal,  104  Pa.  St.  503;  Worth  v.  Hill,  14  Wis.  559. 

EQ.JUR. — 15 


226  PROPERTY    IN    EQUITY — MORTGAGES,   LIENS,  ETC.  [Ch.   9 


MORTGAGES    AND    PLEDGES    OF   PERSONALTY. 

150.  A  chattel  mortgage  is  a  sale  of  personal  property 
on  condition  that  it  shall  be  avoided  by  the  performance 
of  the  condition, — usually  the  payment  of  a  debt  within  a 
specified  time.  If  the  condition  is  broken,  the  title  vests 
absolutely  at  law  in  the  mortgagee.  Equity,  however,  as 
in  the  case  of  mortgages  on  land,  created  a  right  of  re- 
demption after  default. 

151.  A  pledge  or  pawn  is  a  security  created  by  the 
actual  or  constructive  delivery  of  a  personal  chattel  to  a 
bailee  or  pledgee;  the  general  property  remaining  in  the 
pledgor,  the  pledgee  having  only  a  special  property  or 
right  of  retainer  until  the  debt  is  paid. 

We  have  seen  that,  in  the  case  of  real-estate  mortgages,  the  legal 
title  to  the  land  was  originally  regarded  as  vested  in  the  mortgagee. 
We  have  also  seen  that  many  of  the  states  have  discarded  this 
theory;  and  that  a  real-estate  mortgage  is  regarded  as  merely  a 
lien  on  the  land.  No  similar  departure  has,  however,  been  made  in 
any  of  the  states  in  regard  to  chattel  mortgages,  except  in  Cali- 
fornia and  a  few  of  the  western  states.102  In  all  the  other  states 
of  the  Union,  the  mortgage  vests  the  mortgagee  with  the  legal  title.103 
If  there  is  a  breach  of  condition  by  nonpayment  of  the  debt  at  the 
time  specified,  the  mortgagee's  title  becomes  absolute  by  the  old  com- 
mon law.104  In  analogy  to  mortgages  on  land,  equity  vested  the 
mortgagor  with  a  right  to  redeem  within  a  reasonable  time  after 
default.108     To  cut  off  this  right  of  redemption,  it  is  not  necessary, 

102  The  Civil  Code  of  California  declares  that  a  chattel  mortgage  creates 
merely  a  lien  on  the  property  mortgaged.     Civil  Code,  §  2920  et  seq. 

los  The  decisive  test  as  to  whether  a  chattel  mortgage  exists  is  whether  the 
instrument  is  a  conditional  sale  transferring  the  title.  Jones,  Chat  Mortg. 
§  8;  Oampbell  v.  Woodstock  Iron  Co.,  83  Ala.  351,  3  South.  369. 

io4Taber  v.  Hamlin,  97  Mass.  489,  per  Foster,  J.;  Burtis  v.  Bradford,  122 
Mass.  129;  Jones,  Chat  Mortg.  §  681. 

los  Kemp  v.  Westbrook,  1  Yes.  Sr.  278;  Flanders  v.  Chamberlain,  24  Mich. 
305,  315;  Davis  v.  Hubbard,  38  Ala.  185,  189;  Boyd  v.  Beaudin,  54  Wis.  193, 
198,  11  N.  W.  521. 


Ch.   9]  EQUITABLE    LIENS.  227 

however,  for  the  mortgagee  to  bring  a  foreclosure  suit  in  equity, 
as  in  the  case  of  real-estate  mortgages.  He  can  bar  the  equity  of 
redemption  by  a  public  sale  of  the  property,  made  on  due  notice, 
■without  any  suit.106  This  distinction  between  the  two  classes  of 
mortgages  is  similar  to  the  distinction  which  equity  makes  in  rela- 
tion to  specific  performance  between  real  and  personal  property,  viz. 
other  chattels  of  the  same  kind  and  the  same  worth  may  be  pur 
chased  for  the  price  bid  at  the  public  sale.107  The  right  of  fore- 
closure and  redemption  is  now  regulated  in  all  states  by  statute.103 
The  law  of  pledges  falls  under  the  head  of  bailment  at  common 
law  rather  than  under  any  doctrine  in  equity,  and  is  referred  to 
here  merely  for  the  purpose  of  distinction  from  that  applicable  to 
chattel  mortgages.  To  create  a  pledge,  no  transfer  of  the  legal  title 
is  necessary,  but  there  must  be  a  transfer  of  the  possession.  The 
general  title  to  the  property  remains  in  the  pledgor,  and  the  pledgee 
has  only  a  special  property  or  right  of  retainer  until  the  debt  is 
paid.109  The  pledgor  has  a  right  to  redeem  even  at  law  at  any  time 
after  default,  and  before  a  public  sale  of  the  pledged  property  by 
the  pledgee.110 

EQUITABLE   LIENS. 

152.  An  equitable  lien  is  a  right  to  subject  a  particular 
fund  or  specific  property  to  the  satisfaction  of  a  demand. 
It  is  a  charge  on  the  property,  and  not  an  estate  or  inter- 
est in  the  property. 

A  lien  at  common  law  is  defined  as  the  right  to  retain  possession 
of  property  belonging  to  another  until  a  demand  against  him  is  sat 

io«  Patchin  v.  Pierce,  12  Wend.  61,  63;  Long  Dock  Co.  v.  Mallery,  12  N.  J. 
Eq.  93;  Denny  v.  Faulkner,  22  Kan.  89,  100;  First  Nat.  Bank  v.  Darnrn,  63 
Wis.  249,  23  N.  W.  497;  Broadhead  v.  McKay,  46  Ind.  595;  In  re  Morritt,  18 
Q.  B.  Div.  222. 

107  Smith,  Man.  Eq.  Jur.p.  339. 

los  See  Jones,  Chat.  Mortg.  c.  18,  where  the  statutes  of  the  various  states 
are  collected. 

109  Jones  v.  Smith,  2  Ves.  Jr.  378;  Walker  v.  Staples,  5  Allen,  34;  Wright 
v.  Ross,  36  Cal.  414. 

no  Jones  v.  Smith,  2  Ves.  Jr.  372,  378. 


22S  PROPERTY    IN    EQUITY MORTGAGES,   LIENS,  ETC.  [Ch.   1> 

isfied."1  Hence  possession  is  necessary  to  the  existence  of  a  com- 
mon-law lieu.  An  equitable  lien,  on  the  contrary,  is  not  dependent 
on  the  possession  or  retention  of  the  property  on  which  it  is  charged. 
"In  courts  of  equity,  the  term  'lien'  is  used  as  synonymous  with  a 
charge  or  incumbrance  upon  a  thing,  where  there  is  neither  jus  in  re 
nor  ad  rem  nor  possession  of  the  thing."112  Prof.  Poraeroy  113  as- 
cribes the  origin  of  equitable  liens  to  the  fact  that,  in  the  great 
majority  of  cases,  courts  of  law  could  confer  only  a  pecuniary  remedy 
for  breach  of  contract,  while  courts  of  equity  viewed  contracts  as 
(•renting  a  right  in  specific  property;  and  equitable  liens  were  intro- 
duced  "for  the  sole  purpose  of  furnishing  a  ground  for  the  specific 
remedies  which  equity  confers,  operating  on  particular  identified 
property,  instead  of  the  general  pecuniary  recoveries  granted  by 
courts  of  law." 


SAME— EQUITABLE    MORTGAGES. 

153.  An  equitable  mortgage  is  a  charge  or  lien  on  prop- 
erty created: 

(a)  By  an  agreement  to  give  a  mortgage. 

(b)  By  the  imperfect  execution  of  a  mortgage. 

(c)  By  a  deposit  of  title  deeds. 

(d.)  By  a    formal    mortgage    of   an    estate    recognized 
only  in  equity. 

1.  On  the  principle  that  what  is  agreed  to  be  done  is  regarded  in 
equity  as  done,  an  express  agreement  in  writing  to  effect  a  mort- 

111  Hammonds  v.  Barclay,  2  East,  227,  235,  per  Grose,  J. 

112  1  Beach,  Eq.  §  287;  Peck  v.  Jenness,  7  How.  612,  per  Grier,  J.  "An 
equitable  lien  is  not  an  estate  or  property  in  the  thing  itself,  nor  a  right  to 
recover  the  thing;  that  is,  a  right  which  may  be  the  basis  of  a  possessory 
action.  It  is  neither  a  jus  ad  rem  nor  a  jus  in  re.  It  is  simply  a  right  of 
a  special  nature  over  the  thing,  which  constitutes  a  charge  or  incumbrance 
upon  the  thing,  so  that  the  very  thing  itself  may  be  proceeded  against  in  an 
equitable  action,  and  either  sold  or  sequestered  under  a  judicial  decree,  and 
its  proceeds,  in  the  one  case,  or  its  rents  and  profits,  in  the  other,  applied  upon 
the  demand  of  the  creditor  in  whose  favor  the  lien  exists."  3  Pom.  Eq.  Jur. 
§  1233. 

113  3  Pom.  Eq.  Jur.  §  1234. 


Ch.    9]  EQUITABLE    LIENS.  229 

gage  is  treated  as  an  equitable  mortgage.114  This  principle  applies 
with  especial  force  to  agreements  to  mortgage  property  to  be  acquired 
in  the  future.  When  the  property  is  acquired,  it  stands  charged 
with  a  lien,  just  as  if  a  mortgage  had  been  formally  executed.115 

2.  Equity  regards  substance,  and  not  form;  and,  though  a  mort- 
gage is  not  executed  with  all  the  formalities  required  by  law,  equity 
will  uphold  it,  if  it  appears  that  the  parties  intended  to  execute  a 
mortgage  on  specified  property  to  secure  a  certain  debt.118 

3.  In  England,  a  deposit  of  title  deeds  by  a  debtor  with  his  cred- 
itor constitutes  an  equitable  mortgage,  even  though  there  is  no 
written  contract  or  memorandum  stating  why  they  were  so  depos- 
ited. The  statute  of  frauds  does  not  apply  to  a  mortgage  created 
by  such  deposit,  since  equity  will  not  permit  the  statute  to  be  made 
an  instrument  of  fraud;  and,  holding  that  the  deposit  is  conclusive 
evidence  of  an  agreement  under  which  one  has  advanced  money  on 
the  faith  of  the  deposit,  it  will  not  allow  the  depositor  to  set  up  the 
statute  for  the  obvious  purpose  of  swindling  his  creditor.117  This 
form  of  mortgage,  though  very  common  in  England,  is  practically 
obsolete  with  us.118 

4.  In  England,  the  doctrine  that  a  mortgage  vests  the  legal  title 
in  the  mortgagee  is  pushed  to  its  logical  conclusion ;  and  it  is  there- 
fore held  that  all  mortgages  executed  by  the  mortgagor  after  the 

"*  Hall  v.  Hall,  50  Conn.  104;  Read  v.  Simons'  Adm'r,  2  Desaus.  Eq. 
552;   In  re  Howe,  1  Paige,  125;   Payne  v.  Wilson,  74  N.  Y.  34S. 

us  Holroyd  v.  Marshall,  10  H.  L.  Cas.  191;  Chester  v.  Jumel,  125  N.  Y. 
237,  251,  26  N.  E.  297;  Taylor  v.  Huek,  65  Tex.  238;  Powell  v.  Jones,  72  Ala. 
392. 

us  Payne  v.  Wilson,  74  N.  Y.  348;  Walton  v.  Cody,  1  Wis.  420;  Dunraan  v. 
Coleman,  59  Tex.  199;  New  Vienna  Bank  v.  Johnson,  47  Ohio  St.  306,  24  N. 
E.  503;  New  Orleans  Nat.  Banking  Ass'n  v.  Adams,  109  U.  S.  211,  3  Sup.  Ct. 
161;   Bank  of  Muskingum  v.  Carpenter,  7  Ohio,  21. 

iit  Russel  v.  Russel,  1  Brown,  Ch.  269,  1  White  &  T.  Lead.  Cas.  Eq.  931; 
Keys  v.  Williams,  3  Younge  &  C.  55. 

us  Mortgages  by  deposit  of  title  deeds  have  been  recognized  in  some  of 
the  American  states.  Mounce  v.  Byars,  16  Ga.  469;  Hackett  v.  Reynolds, 
4  R.  I.  512;  Rockwell  v.  Hobby,  2  Sandf.  Ch.  9;  Griffin  v.  Griffin,  18  N.  J. 
Eq.  104;  Mowry  v.  Wood,  12  Wis.  413;  Edwards'  Ex'rs  v.  Trumbull,  50  Pa. 
St.  509;  Bloom  v.  Noggle,  4  Ohio  St.  45,  46.  In  others,  the  doctrine  has  been 
repudiated.  Lehman  v.  Collins,  69  Ala.  127;  Bicknell  v.  Bicknell,  31  Vt.  498; 
Gothard  v.  Flynn,  25  Miss.  58. 


230         PROPERTY  IN  EQUITY MORTGAGES,  LIENS,  ETC.       [Ch.  9 

first  are  merely  equitable  mortgages,  since  he  has  nothing  but  an 
equity  to  mortgage.119  This  doctrine  does  not  prevail  in  any  of  the 
states  of  the  Union,  and  no  distinction  is  made  in  this  respect  be- 
tween first  and  subsequent  mortgages. 


SAME— LIENS   BASED    ON    CONSIDERATIONS    OF    JUSTICE. 

154.  Not  only  -will  equity  enforce  liens  created  by  ex- 
press agreement  of  the  parties,  but  it  will  create  a  lien 
whenever  required  by  considerations  of  justice.120 

1.  At  common  law,  improvements  made  by  an  occupant  of  land 
in  good  faith,  under  the  belief  that  he  was  the  owner,  passed,  as 
part  of  the  freehold,  to  the  lawful  owner  when  he  recovered  the 
premises  in  ejectment.121  In  all  cases,  however,  where  he  brought 
an  action  in  equity  for  an  account  of  the  rents  and  profits,  the  maxim, 
"He  who  seeks  equity  must  do  equity,"  was  applied,  and  the  value 
of  the  improvements  was  allowed  to  the  occupant.122  Courts  of  law 
subsequently  adopted  the  same  theory,  and  permitted  the  value  of 
The  improvements  to  be  set.  off  in  an  action  for  the  mesne  profits.123 
The  general  rule,  however,  was  that  the  claim  for  improvements 
could  only  be  made  use  of  by  way  of  defense,  and  that  the  occupant 
could  not  himself  come  into  equity  and  obtain  affirmative  relief,12* 
except  where  the  legal  owner  knowingly  stood  by,  and  permitted 
the  improvements  to  be  made  without  objection.125  This  question 
is  now  regulated  by  statutes  in  the  various  states. 

2.  A  tenant  in  common  has  an  equitable  lien  on  his  cotenant's 
interest  for  useful  and  necessary  repairs  made  by  him  to  preserve 

«9  Smith,  Prin.  Eq.  p.  285. 

"o  3  pom.  Eq.  Jur.  §§  1258,  1259. 

121  McCoy  v.  Grandy,  3  Ohio  St.  4G5,  40(5;  Lunquest  v.  Ten  Eyck,  40  Iowa, 
213. 

122  Bright  v.  Boyd,  1  Story,  478,  Fed.  Cas.  No.  1,875;  Green  v.  Biddle,  8 
Wheat.  77;   Putnam  v.  Ritchie,  6  Paige  (N.  Y.)  390,  404. 

123  Murray  v.  Gouverneur,  2  Johns.  Cas.  438,  441. 

124  Neesom  v.  Clarkson,  4  Hare,  97;  Thomas  v.  Evans,  105  N.  Y.  G01,  12 
N.  E.  571;    Skiles*  Appeal,  110  Pa.  St.  218.  20  Atl.  722. 

125  Pilling  v.  Armitage,  12  Vis.  78,  S4;   Miner  v.  Beekman,  50  N.  Y.  337. 


Ch.  9]  EQUITABLE    LIENS.  231 

the  common  property  from  decay  and  ruin ; 126  but  for  permanent 
improvements  no  lien  exists,  independent  of  contract,  since  the  other 
cotenants  might  be  deprived  of  their  share  in  the  property  by  the 
erection  of  improvements  for  which  they  are  unable  to  pay.1" 

3.  A  tenant  for  life,  who  is  entitled  to  the  possession  for  an  indefi- 
nite period,  is  presumed  to  make  improvements  for  his  own  personal 
enjoyment;  and  hence  the  remainder-man's  interest  should  not  be 
charged  with  a  lien  for  such  improvements,128  except  when  the  ten- 
ant for  life  completes  such  as  have  been  begun  by  the  person  creat- 
ing the  life  estate.12* 


SAME— VENDOR'S    LIEN. 

155.  Where  a  vendor  delivers  possession  of  an  estate  to 
a  purchaser  without  receiving  the  purchase  money,  equity- 
gives  the  vendor  a  lien  on  the  land  for  the  unpaid  pur- 
chase money,  though  there  was  no  special  agreement  for 
that  purpose.130 

There  has  been  considerable  diversity  of  opinion  as  to  the  origin 
of  vendor's  liens.  By  some  writers,  their  origin  is  ascribed  to  the 
law  of  trusts,  the  purchaser  being  regarded  as  holding  the  title  sub- 
ject to  a  trust  for  the  payment  of  the  purchase  money.131  Others 
regard  the  vendor's  lien  as  an  equitable  mortgage,132  and  others  as 
arising  from  the  implied  intention  of  the  parties.133     But  in  the 

126  Lake  v.  Craddock,  3  P.  Wins.  158;  Haven  v.  Mehlgarten,  19  111.  95; 
Alexander  v.  Ellison,  79  Ky.  148. 

127  Corbett  v.  Laurens,  5  Rich.  Eq.  (S.  C.)  301;  Carver  v.  Coffman,  109  Ind. 
547,  10  N.  E.  567. 

128  Corbett  v.  Laurens,  5  Rich.  Eq.  (S.  C.)  301,  315;  Taylor  v.  Foster,  22 
Ohio  St.  255. 

129  Dent  v.  Dent,  30  Beav.  3G3;  Sohier  v.  Eldredge,  103  Mass.  345,  351. 
iso  2  Sugd.  Vend.  671. 

1312  Story,  Eq.  Jur.  §  1218  et  seq.;  Snell,  Eq.  p.  142;  Perry,  Trusts,  §§  231, 
232;  Blackburn  v.  Gregson,  1  Brown,  Ch.  420. 

132  Adams,  Eq.  127;  Wilson  v.  Davisson,  2  Rob.  (Va.)  384,  404. 

133  in  Kauffelt  v.  Bower,  7  Serg.  &  R.  64,  76,  Chief  Justice  Gibson  repudiates 
this  view  as  follows:  "The  implication  that  there  is  an  intention  to  reserve 
a  lien  for  the  purchase  money  in  all  cases  where  the  parties  do  not  by 


232  PROPERTY    IN    EQUITY MORTGAGES,   LIENS,  ETC.  [Ch.  9 

earliest  case  on  the  subject,  where  the  lien  was  allowed,13*  it  was 
grounded  "on  a  natural  equity  that  the  land  should  stand  charged 
with  so  much  of  the  purchase  money  as  was  not  paid,  and  that  with- 
out any  special  agreement  for  the  purpose."  And  more  than  a  cen- 
tury  later,  in  what  is  now  regarded  as  the  leading  case  on  the  sub- 
:'  Lord  Eldon  said:  "Upon  principle,  without  authority,  I 
cannot  doubt  that  it  goes  upon  this:  that  a  person  having  got  the 
estate  of  another  shall  not,  as  between  them,  keep  it,  and  not  pay 
the  consideration." 

Controlled  by  considerations  such  as  these,  vendor's  liens  have 
been  recognized  by  the  courts  of  Alabama,138  Arkansas,137  Cali- 
fornia.138 Colorado,139  District  of  Columbia,140  Florida,141  Illinois,142 
Indiana,143   Iowa,144  Kentucky,145   Louisiana,148  Maryland,147   Michi- 

express  acts  evince  a  contrary  intention  is  in  almost  every  case  inconsistent 
with  the  truth  of  the  facts,  and  in  all  instances,  without  exception,  in  contra- 
diction of  the  express  terms  of  the  contract,  which  purports  to  be  a  conveyance 
of  everything  that  can  pass."  In  Ahrend  v.  Odiorne,  118  Mass.  2G1,  Chief 
Justice  Gray  bases  the  doctrine  on  the  fact  that,  by  the  law  of  England,  real 
estate  could  not  be  taken  in  execution  for  debt,  except  to  a  limited  extent, 
and  that,  therefore,  the  coiu't  of  chancery  interfered  in  favor  of  the  vendor. 

134  Chapman  v.  Tanner  (1684)  1  Vern.  267. 

135  Mackreth  v.  Symmons  (1808)  15  Ves.  329,  1  White  &  T.  Lead.  Cas.  Eq. 
447. 

136  Woodall  v.  Kelly,  85  Ala.  3G8,  5  South.  1G4;  Jones  v.  Lockard,  89  Ala. 
575,  8  South.  103. 

is?  Springfield  &  M.  R.  Co.  v.  Stewart,  51  Ark.  285,  10  S.  W.  767. 

138  Civil  Code,  §  3046;  Avery  v.  Clark,  87  Cal.  619,  25  Pac.  919. 

139  Francis  v.  Wells,  2  Colo.  660. 

140  Ford  v.  Smith,  1  McArthur,  592. 
i4i  Bradford  v.  Marvin,  2  Fla.  463. 

142  Dyer  v.  Martin,  4  Scam.  146;  Andrus  v.  Coleman,  82  111.  26;  Gruhn  v. 
Richardson,  128  111.  178,  21  N.  E.  18. 

143  Lagow  v.  Badollet,  1  Blackf.  416;  Fouch  v.  Wilson,  60  Ind.  64;  Brower 
v.  Witmeyer,  121  Ind.  83,  22  N.  E.  975. 

144  Grapengether  v.  Fejervary,  9  Iowa,  163;  Kendrick  v.  Eggleston,  56  Iowa, 
128,  8  N.  W.  786;   Erickson  v.  Smith,  79  Iowa,  374,  44  N.  W.  681. 

145  Fowler  v.  Heirs  of  Rust,  2  A.  K.  Marsh.  294;  Brown  v.  Ferrell,  S3  Ky. 
417. 

146  Pedesclaux  v.  Legare,  32  La.  Ann.  380. 

147  pub.  Gen.  Laws  1S88,  art.  16,  §  93;  Moreton  v.  Harrison,  1  Bland,  491; 
Ringgold  v.  Bryan,  3  Md.  Ch.  488;  Baltimore  &  L.  T.  Co.  v.  Moale,  71  Md. 
355,  18  Atl.  658. 


Ch.   9]  EQUITABLE    LIENS.  233 

gan,148  Minnesota,149  Mississippi,180  Missouri,161  New  Jersey,152  New 
York,153  North,  and  South  Dakota,154  Ohio,155  Oregon,156  Khode  Is- 
land,157 Tennessee,158  Texas,159  and  Wisconsin.160  In  Georgia,161  Ver- 
mont,162 Virginia,163  and  West  Virginia 164  they  have  been  abrogated 
by  legislation;  while  in  Kansas,165  Maine,166  Massachusetts,167  Ne- 
braska,168 North  Carolina,169  Pennsylvania,170  and  South  Carolina  171 
they  have  been  rejected  as  opposed  to  public  policy,  which  requires 
all  matters  affecting  land  titles  to  be  made  a  matter  of  record. 

"8  Converse  v.  Blumrich,  14  Mich.  109;  Richards  v.  Lumber  Co.,  74  Mich. 
57,  41  N.  W.  860. 

«9  Selby  v.  Stanley,  4  Minn.  65  (Gil.  34);  Peters  v.  Tunell,  43  Minn.  473, 
45  N.  W.  867. 

iso  Dunlap  v.  Burnett,  5  Secedes  &  M.  702;  Lissa  v.  Posey,  64  Miss.  352,  1 
South.  500. 

isi  McKnight  v.  Brady,  2  Mo.  110;  Christy  v.  McKee,  94  Mo.  241,  6  S.  W. 
656. 

152  Vandoren  v.  Todd,  3  N.  J.  Eq.  397;  Acton  v.  Waddington,  46  N.  J.  Eq. 
16,  18  Atl.  356. 

153  Champion  v.  Brown,  6  Johns.  Ch.  398,  402;   Chase  v.  Peck,  21  N.  Y.  581 

154  Civ.  Code,  §  1801. 

ins  Tiernan  v.  Beam,  2  Ohio,  383;  Anketel  v.  Converse,  17  Ohio  St.  11. 

ice  Gee  v.  McMillan,  14  Or.  268,  12  Pac.  417. 

157  Kent  v.  Gerhard,  12  R.  I.  92. 

iss  Eskridge  v.  McClure,  2  Yerg.  (Tenn.)  86;  Cate  v.  Cate,  87  Tenn.  41,  9 
S.  W.  231. 

159  Briscoe  v.  Bronaugh,  1  Tex.  326;  White  v.  Downs,  40  Tex.  225;  Howe 
v.  Harding,  76  Tex.  17,  13  S.  W.  41. 

iso  Tobey  v.  McAllister,  9  Wis.  465;  Evans  v.  Enloe,  70  Wis.  345,  34  N.  W. 
918,  and  36  N.  W.  22. 

lei  Code  1882,  §  1997. 

162  Gen.  St.  1862,  c.  65,  §  33. 

163  Code  1873,  c.  115,  §  1. 

164  Code  1870,  c.  75,  §  1. 

165  Simpson  v.  Mundee,  3  Kan.  172;   Greeno  v.  Barnard,  18  Kan.  578. 

166  Philbrook  v.  Delano,  29  Me.  410,  415. 

167  Ahrend  v.  Odiorne,  118  Mass.  261. 

168  Edminster  v.  Higgins,  6  Neb.  265. 

169  White  v.  Jones,  92  N.  C.  388;  Moore  v.  Ingram,  91  N.  C.  376;  Peck  v. 
Culberson,  104  N.  C.  426,  10  S.  E.  511. 

170  Kauffelt  v.  Bower,  7  Serg.  &  R.  64;  Hiester  v.  Green,  48  Pa.  St.  96; 
Strauss's  Appeal,  49  Pa.  St.  353. 

i7i  Wragg  v.  Comptroller  General,  2  Desaus.  Eq.  509,  520. 


204  PROPERTY    IN    EQUITY MORTGAGES,   LIENS,   ETC.  [Ch.   9 

A  fixed  and  certain  debt  for  the  purchase  price  of  land  is  essential 
to  the  existence  of  a  vendor's  lien.  Hence,  where  there  is  a  sale  of 
both  real  and  personal  property  for  a  gross  sum,  the  vendor's  lien 
does  not  exist,  because  the  court  cannot  accurately  ascertain  and 
define  the  amount  of  the  charge  to  be  imposed  on  the  land,  and  en- 
forced out  of  it.1"  Hence,  too,  it  has  been  held  that  if  the  consid- 
eration is  something  other  than  money,  as  an  agreement  to  support 
the  grantor  during  life,173  or  a  specified  quantity  of  cotton,174  no 
lien  exists. 

In  the  next  place,  the  lien  will  be  enforced  as  against  the  vendee 
and  all  persons  claiming  under  him,  except  bona  fide  purchasers  for 
value  without  notice.175  A  volunteer,  therefore,  takes  subject  to 
i  he  lien,  though  he  had  no  notice;  and  so  does  a  purchaser  for  value 
with  notice.178 

By  the  weight  of  authority  in  the  United  States,  a  vendor's  lien  is 
not  assignable,  but  is  personal  to  the  grantor  himself,177  though  in 
England  178  and  some  of  the  states  the  rule  is  otherwise.178 

172  Erickson  v.  Smith,  79  Iowa,  374,  44  N.  W.  681;  Peters  v.  Tunell,  43 
Minn.  473,  45  N.  w.  SG7;  Alexander  v.  Hooks,  84  Ala.  605,  4  South.  417; 
Stringfellow  v.  Ivie,  73  Ala.  209,  214. 

its  Peters  v.  Tunell,  43  Minn.  473,  45  N.  W.  867. 

174  Han-is  v.  Hanie,  37  Ark.  348. 

175  Walker  v.  Preswick,  2  Ves.  Sr.  622;  Cator  v.  Earl  of  Pembroke,  1  Brown, 
Ch.  302;  Christopher  v.  Christopher,  64  Md.  583,  3  Atl.  296;  Crowe  v.  Colbeth, 
63  Wis.  643,  24  N.  W.  478;  Graves  v.  Coutant,  31  N.  J.  Eq.  763;  Edmonson  v. 
Phillips,  73  Mo.  57. 

176  Christopher  v.  Christopher,  64  Md.  583,  3  Atl.  296;  Beal  v.  Harrington, 
116  111.  113,  4  N.  E.  664. 

177  First  Nat.  Bank  of  Salem  v.  Salem  Capital  Flour-Mills  Co.,  39  Fed.  89, 
95;  Carlton  v.  Buckner,  28  Ark.  66;  Crossland  v.  Powers  (Ark.)  13  S.  W. 
722;  Gruhn  v.  Richardson,  12S  111.  178,  21  N.  E.  18;  Payne  v.  Nowell,  41  La. 
Ann.  S52,  6  South.  636;  Dixon  v.  Dixon,  1  Md.  Ch.  220;  Hammond  v.  Peyton, 
34  Minn.  529,  27  N.  W.  72;  White  v.  Williams,  1  Paige,  502;  Ogle  v.  Ogle, 
41  Ohio  St  359;  Burkhardt  v.  Howard,  14  Or.  39,  12  Pac.  79. 

178  Dryden  v.  Frost,  3  Mylne  &  C.  670. 

179  Wilkinson  v.  May,  69  Ala.  33;  Jones  v.  Lockard,  S9  Ala.  575,  8  South. 
103;  Lowry  v.  Smith,  97  Ind.  466;  Honore's  Ex'r  v.  Bakewell,  6  B.  Mon.  67; 
Louisiana  Nat.  Bank  v.  Knapp,  61  Miss.  485;  Sloan  v.  Campbell,  71  Mo.  3S7; 
De  Bruhl  v.  Maas,  54  Tex.  464. 


Ch.    9]  EQUITABLE    LIENS.  235 

Waiver  of  Lien. 

The  fact  that  the  conveyance  recites  payment  of  the  considera- 
tion, or  that  a  receipt  for  it  is  indorsed  thereon,  does  not  defeat  the 
lien,  if  in  reality  the  purchase  price  is  unpaid.180  Nor  is  the  mere 
circumstance  that  the  vendor  has  taken  personal  security  from  the 
vendee,  such  as  a  bond,  bill,  or  note,  conclusive  on  the  vendors  in- 
tention to  abandon  the  lien.  To  have  this  effect,  the  bond,  note,  or 
bill  must  in  fact  be  the  very  consideration  for  which  the  land  was 
sold,  and  not  a  mere  evidence  of  indebtedness.  If  the  bond,  bill,  or 
note  was  in  fact  substituted  for  the  consideration  money,  and  was 
the  very  thing  bargained  for,  the  lien  does  not  exist.181  So,  also, 
the  lien  will  be  deemed  waived  if  the  vendor  takes  independent  and 
collateral  security  for  the  purchase  price,  such  as  the  note  of  a  third 
person,182  or  a  mortgage  on  land.188 
Express  Reservation  of  Lien. 

In  the  foregoing  classes  of  cases,  the  lien  has  been  raised  by  courts 
of  equity  without  any  agreement  by  the  parties  as  to  its  existence. 
It  has,  however,  become  the  custom  in  some  of  the  states  to  ex- 
pressly reserve,  in  the  deed  conveying  the  land,  a  lien  as  security 
for  the  unpaid  purchase  money.  Such  a  lien  much  more  nearly 
resembles  a  purchase-money  mortgage  than  the  implied  equitable 
vendor's  lien,184  and  is  recognized  and  enforced  in  some  of  the  states 
where  that  lien  is  abrogated,  since  it  is  a  matter  of  record.185 

i8o  Mackreth  v.  Symmons,  15  Ves.  329,  1  White  &  T.  Lead.  Cas.  Eq.  447; 
Ogden  v.  Thornton,  30  N.  J.  Eq.  569;  Bankhead  v.  Owen,  60  Ala.  457;  Hol- 
man  v.  Patterson,  29  Ark.  357;  Walton  v.  Hargroves,  42  Miss.  18;  Thompson 
v.  Corrie,  57  Md.  197. 

isi  Mackreth  v.  Symmons,  15  Ves.  329,  1  White  &  T.  Lead.  Cas.  Eq.  447; 
Frail  v.  Ellis,  16  Beav.  350;  Kent  v.  Gerhard,  12  R.  I.  92;  Madden  v.  Barnes, 
45  Wis.  135;  Dance  v.  Dance,  56  Md.  435;  Lavender  v.  Abbott,  30  Ark.  172. 

182  Vail  v.  Foster,  4  N.  Y.  312;  Durette  v.  Briggs,  47  Mo.  356;  Walker  v. 
Struve,  70  Ala.  167;  Christy  v.  McKee,  94  Mo.  241,  6  S.  W.  656;  Springfield 
&  M.  R.  Co.  v.  Stewart,  51  Ark.  285,  10  S.  W.  767. 

183  Nairn  v.  Prowse,  6  Ves.  752;  Bond  v.  Kent,  2  Vern.  281;  Land  Co.  v. 
Peck,  112  111.  408,  451;  Walker  v.  Struve,  70  Ala.  167;  Orrick  v.  Durham,  79 
Mo.  174;  Tinsley  v.  Tinsley,  52  Iowa,  14,  2  N.  W.  528. 

184  King  v.  Young  Men's  Ass'n,  1  Woods,  3S6,  Fed.  Cas.  No.  7,811;  Kirk  v. 
Williams.  24  Fed.  437;  Bank  v.  Bradley,  15  Lea,  279;  Collins  v.  Richart,  14 
Bush,  621;  Eichelberger  v.  Gitt,  104  Pa.  St.  64;  Talieferro  v.  Burnett,  37  Ark. 
511. 

185  Hiester  v.  Green,  48  Pa.  St.  96;  Yancey  v.  Mauck,  15  Grat.  300. 


236  PROPERTY    IN    EQUITY — MORTGAGES,   LIENS,  ETC.  [Ch.   9 

>r's  Lien  under  Contract  of  Stile. 
It  is  sometimes  said  that  a  vendor  under  a  contract  of  sale,  who 
places  his  vendee  in  possession  without  executing  or  delivering  a 
deed,  has  a  lien  on  the  land  for  the  unpaid  purchase  price.  This, 
however,  is  a  misnomer.  The  legal  title  remains  in  the  vendor; 
and,  while  the  vendee  is  regarded  as  the  owner  in  the  eye  of  a  court 
of  equity,  yet  the  vendor  will  be  permitted  to  retain  the  legal  title 
as  security  for  the  unpaid  purchase  money.186  The  vendor  has  also 
the  right  to  foreclose  the  contract,  and  thus  cut  off  all  rights  there- 
under, unless  the  purchase  price  is  paid  within  a  specified  time. 


SAME— VENDEE'S   LIEN. 

156.  A  vendee  under  a  land  contract  who  prematurely 
pays  the  purchase  money,  or  any  part  of  it,  has  a  lien 
therefor  on  the  land  contracted  to  be  sold,  if,  by  reason 
of  the  vendor's  default,  the  contract  is  not  performed. 

This  lien  is  in  all  respects  analogous  to  the  vendor's  lien  for  the 
unpaid  purchase  money.  The  legal  title  remains  in  the  vendor,  but 
the  vendee  has  a  lien  on  the  land  as  security  for  the  purchase  money 
he  has  paid.187  Such  a  lien  generally  arises  where  a,  deposit  has 
been  made  by  the  purchaser,  and  the  title  turns  out  to  be  defective, 
or  for  some  other  reason  the  sale  is  not  completed. 


SAME— CHARGES    OF   DEBTS   AND   LEGACIES. 

157.  An  equitable  lien  on  land  is  created  where  it  is  de- 
vised subject  to  or  charged  with  the  payment  of  testator's 
debts  and  legacies. 

iseLysaffht  v.  Edwards,  2  Ch.  Div.  499,  506,  507;  Shaw  v.  Foster,  L.  R.  5 
H.  L.  321;  Robinson  v.  Appleton,  124  111.  276,  15  N.  E.  761;  Sykes  v.  Betts, 
87  Ala.  537,  6  South.  428;  Church  v.  Smith,  39  Wis.  492;  Ransom  v.  Brown, 
63  Tex.  1S8;  Wells  v.  Smith,  44  Miss.  296;  White  v.  Blakemore,  8  Lea,  49. 

187  Wythes  v.  Lee,  3  Drew,  396;  Torrance  v.  Bolton,  L.  R.  14  Eq.  124,  8 
Ch.  App.  118;  Stewart  v.  Wood,  63  Mo.  252;  Cooper  v.  Merritt,  30  Ark.  686; 
Wickman  v.  Robinson,  14  Wis.  493. 


Ch.    9]  EQUITABLE    LIENS.  237 

The  personal  property  of  a  deceased  person  is  the  primary  fund 
for  the  payment  of  debts,  and  the  exclusive  fund,  as  between  lega- 
tees and  devisees,  for  the  payment  of  legacies.188  To  overcome  this 
rule  of  law,  an  intention  by  testator  to  subject  the  land  to  liability 
must  appear.  Such  intention  may  be  manifested  by  express  direc- 
tion to  pay  the  debts  and  legacies  out  of  the  lands  devised,189  or 
it  may  be  implied  from  the  provisions  of  the  will  as  a  whole  and  the 
circumstances  surrounding  its  execution.190  The  rule  in  England 
and  in  some  of  the  courts  of  this  country  is  that  if  testator  gives  a 
legacy,  and  then  makes  a  general  residuary  disposition  of  the  whole 
estate,  blending  the  realty  and  the  personalty  together  in  one  fund, 
the  vendor's  real  estate  will  be  charged  with  the  legacies,  as  well 
as  the  personal.191  But  a  legacy  charged  by  general  words  on  tes- 
tator's real  estate  is  not  a  lien  on  land  specifically  devised.192 

While  a  charge  of  debts  and  legacies  on  the  land  creates  a  lien, 
the  primary  liability  of  the  personalty  is  not  thereby  exonerated, 
but  testator's  intention  to  exonerate  must  expressly  or  by  clear  im- 
plication appear.193  Hence,  as  a  rule,  the  creditor  or  legatee  has 
three  remedies  for  enforcing  a  debt  or  legacy  charged  on  the  land: 

188  Duke  of  Ancaster  v.  Mayer,  1  Brown,  Ch.  454,  1  White  &  T.  Lead.  Cas.  Eq. 
8S1;  Kitchell  v.  Young,  46  N.  J.  Eq.  506,  19  Atl.  729;  Newsom  v.  Thornton, 
82  Ala.  402,  8  South.  261;  Appeal  of  Mann  (Pa.  Sup.)  14  Atl.  270;  Davidson 
v.  Coon,  125  Ind.  497,  25  N.  E.  601;  Allen  v.  Patton,  83  Va.  255,  2  S.  E.  143. 

189  Pom.  Eq.  Jur.  §  1246.  A  mere  general  direction  does  not  create  a 
charge  on  the  realty.  Harmon  v.  Smith,  38  Fed.  482;  In  re  City  of  Rochester, 
110  N.  Y.  165,  17  N.  E.  740. 

i»o  Stevens  v.  Flower,  46  N.  J.  Eq.  340,  19  Atl.  777;  Duncan  v.  Wallace,  114 
Ind.  169,  170,  16  N.  E.  137. 

i9i  Greville  v.  Browne,  7  H.  L.  Cas.  689;  Stevens  v.  Flower,  46  N.  J.  Eq. 
340,  19  Atl.  777;  Smith  v.  Fellows,  131  Mass.  20;  Davis'  Appeal,  83  Pa.  St. 
348;  Hutchinson  v.  Gilbert,  86  Tenn.  464,  469,  7  S.  W.  126;  Lewis  v.  Darling, 
16  How.  1;  Lafferty  v.  People's  Sav.  Bank,  76  Mich.  35,  43  N.  W.  34;  Atmore 
v.  Walker,  46  Fed.  429;  Lapham  v.  Clapp,  10  R.  I.  543;  Jaudon  v.  Ducker. 
27  S.  C.  295,  3  S.  E.  465.  This  rule  does  not  prevail  in  New  York.  Brill  v. 
Wright,  112  N.  Y.  129,  19  N.  E.  628;  Briggs  v.  Carroll,  117  N.  Y.  2SS,  22  N. 
E.  1054;    Hoyt  v.  Hoyt,  85  N.  Y.  142. 

192  Robinson  v.  Mclver,  63  N.  C.  645;  Davenport  v.  Sargent,  63  N.  H.  53S, 
4  Atl.  569;    Spong  v.  Spong,  3  Bligh  (N.  S.)  84. 

193  Tower  v.  Lord  Rous,  18  Ves.  132,  138;  Chapin  v.  Waters,  116  Mass.  140, 
146;  Cooch's  Ex'r  v.  Cooch's  Adm'r,  5  Houst.  (Del.)  540,  569;  Hanson  v.  Han- 
son, 70  Me.  508,  511;  Kirkpatrick  v.  Rogers,  7  Ired.  Eq.  44. 


238  PROPERTY    IN    EQUITY MORTGAGES,  LIENS,  ETC.  [Ch.    9 

II'  may  either  enforce  payment  from  the  executor  in  the  usual  course 
of  administration,  or  he  may  foreclose  the  lien  against  the  land,  or, 
if  the  devise  has  been  made  conditional  on  paying  the  debt  or  legacy, 
he  may  maintain  a  common-law  action  against  the  devisee  on  the 
promise  to  pay,  implied  from  the  acceptance  of  the  devise.19* 


ASSIGNMENTS. 

158.  An  assignment  is  a  transfer  or  making  over  to 
another  of  the  -whole  of  any  property,  real  or  personal,  in 
possession  or  in  action,  or  of  any  estate  or  right  therein.195 
The  term  includes  the  act  of  transfer,  as  well  as  the  in- 
strument by  which  it  is  effected.196 

159.  Though  anciently  assignments  of  possibilities  and 
choses  in  action  were  not  permitted  at  common  law,  the 
validity  of  such  assignments  was  recognized  from  a  very 
early  period  in  equity,  and  they  were  enforced  by  courts 
of  equity  whenever  made  for  a  valuable  consideration. 

The  reason  for  the  common-law  rule  was  thus  expressed  by  Lord 
Coke:  ''The  great  wisdom  and  policy  of  the  sages  and  founders  of 
our  law  have  provided  that  no  possibility,  right,  title,  or  thing  in 
action  shall  be  granted  or  assigned  to  strangers;  for  that  would  be 
the  occasion  of  multiplying  contentions  and  suits,  of  great  oppression 
of  the  people,  and  the  subversion  of  the  due  and  equal  execution  of 
justice." 19T  Sir  Frederick  Pollock,  however,  asserts  that  the  com- 
mon-law rule  was  "a  logical  consequence  of  the  primitive  view  of 
contract  as  creating  a  strictly  personal  obligation  between  the  cred- 
itor and  the  debtor."108 

is*  Brown  v.  Knapps,  79  N.  Y.  136;  Lord  v.  Lord,  22  Conn.  595,  602. 
193  Bouv.  Law  Diet.  tit.  "Assignment." 

196  Burrill,  Assignm.  §  1. 

197  Lampet's  Case,  10  Coke,  48. 

198  Poll.  Cont  p.  196.  Many  of  the  later  writers  on  equity  jurisprudence 
have  denounced  the  common  law  as  barbarous  in  this  respect;  and  so  it 
undoubtedly  is  when  viewed  in  the  light  of  modern  social  conditions.  But 
substantial  reasons  of  public  policy  were  probably  at  the  foundation  of  the 


Ch.  9]  ASSIGNMENTS.  239 

The  necessities  of  commerce  long  ago  effected  a  modification  of 
the  common-law  principle.  Thus,  bills  of  exchange  became  assign- 
able by  custom,  and  promissory  notes  were  made  so  by  statute.199 
Further  than  this,  in  the  course  of  time,  courts  of  law  came  to  rec- 
ognize the  assignee's  rights  in  choses  in  action,  so  far  as  to  permit 
him  to  sue  in  the  assignee's  name,200  and  equitable  interference  thus 
became  unnecessary  in  this  class  of  cases.201  Finally,  the  judicature 
act  in  England  renders  an  absolute  assignment  of  a  legal  chose  in 
action  effectual  at  law,  and  the  assignee  may  sue  thereon  in  his  own 
name.202  So,  in  all  the  American  states  where  the  reformed  pro- 
cedure prevails,  the  real  party  in  interest,  which,  of  course,  includes 
an  assignee,  is  required  to  sue  in  his  own  name. 


SAME— WHAT   ASSIGNMENTS   NOW    RECOGNIZED    AT  LAW. 

160.  To  determine  whether  any  cause  of  action  is  as- 
signable at  law,  the  following  rule  has  been  formulated: 
If  the  cause  of  action  survives,  and  passes  to  the  personal 

rule.  In  the  middle  ages,  in  addition  to  the  temporal  courts,  there  existed 
ecclesiastical  or  spiritual  tribunals.  "The  cleric,  whether  plaintiff  or  de- 
fendant, was  entitled  in  civil  cases  to  be  heard  before  the  spiritual  courts. 
which  were  naturally  partial  in  his  favor,  even  where  not  venal,  so  that  jus- 
tice was  scarce  to  be  obtained.  That  such  in  fact  was  the  experience  is  shown 
by  the  practice  which  grew  up  of  clerks  purchasing  doubtful  claims  from  lay- 
men, and  then  enforcing  them  before  the  Courts  Christian,— a  speculative  pro- 
ceeding, forbidden,  indeed,  by  the  councils,  but  too  profitable  to  be  suppressed." 
Lea,  History  of  the  Inquisition,  p.  34.  Such  a  practice  would  justify  Lord  Coke's 
language  in  relation  to  assignments,  as  tending  to  "the  great  oppression  of 
the  people,  and  the  subversion  of  the  due  and  equal  execution  of  justice." 
ie»  3  &  4  Anne,  c.  9,  p.  106;   7  Anne,  c.  25. 

200  De  Pothonies  v.  De  Mattos,  El.,  Bl.  &  El.  467;  Master  v.  Miller,  4  Term. 
R.  320,  340,  341 ;  Johnson  v.  Bloodgood,  1  Johns.  Cas.  51. 

201  Hammond  v.  Messenger,  9  Sim.  327;  Keys  v.  Williams,  3  Younge  &  C. 
Ex.  462,  466,  467.  The  mere  fact  that  an  assignee  of  a  legal  cause  of  action 
cannot  sue  in  his  own  name  at  law  does  not  warrant  a  court  of  equity  in 
taking  jurisdiction.  Walker  v.  Brooks,  125  Mass.  241;  Hay  ward  v.  Andrews, 
106  U.  S.  672,  675,  1  Sup.  Ct.  544;  Hagar  v.  Buck,  44  Vt.  2S5,  290. 

202  3G  &  37  Vict.  c.  66,  §  25,  subsec.  6. 


240  PROPERTY    IN    EQUITY MORTGAGES,  LIENS,  ETC.  [Ch.   9 

representatives  of  a  decedent  as  assets,  or  continues  as  lia- 
bilities against  his  representatives,  it  is  assignable;  other- 
wise not.*13 

Applying  this  rule,  contracts  and  rights  of  action  for  their  breach 
are  assignable,  excepting  contracts  of  a  personal  nature,  involving 
personal  trust  or  confidence.204  Thus,  a  contract  calling  for  per- 
sonal services,  requiring  special  skill  or  knowledge  of  the  contract- 
ing party,  dies  with  the  party,  and  is  not  assignable;205  and  so  with 
a  right  of  action  for  breach  of  marriage  promise.208  With  respect 
to  torts,  the  general  rule  is  that  a  right  of  action  for  a  wrong  done 
to  the  property  of  another,  real  or  personal,  will  survive;  but  a  right 
of  action  for  a  wrong  to  the  person  or  feelings  of  another  does  not 
survive,  and  is  not  assignable.207  Thus,  a  right  of  action  for  injury 
to  laDd  or  personal  property  is  assignable;208  and  so  with  a  claim 
for  damages  to  property  caused  by  fraud  or  deceit,209  though  it  is 
otherwise  if  only  personal  relations  are  affected.210  The  statutory 
right  of  action  for  wrongfully  killing  a  person  is  regarded, as  assets 
of  his  estate,  and  is  therefore  assignable,211  but  a  cause  of  action  for 
a  personal  injury  not  causing  death,212  or  for  false  imprisonment,213 
is  not  assignable. 

203  Pom.  Rein.  §  147  et  seq.;  Brackett  v.  Griswold,  103  N.  Y.  425,  428,  9  N. 
E.  43S;  Stewart  v.  Houston  &  T.  C.  Ry.  Co.,  62  Tex.  246;  Dayton  v.  Fargo, 
45  Mich.  153,  7  N.  W.  158. 

204  pom.  Rem.  §  147;  Bliss,  Code  PI.  §  47. 

205  Devlin  v.  Mayor,  etc.,  63  N.  Y.  9;   Shnltz  v.  Johnson,  5  B.  Mon.  497. 

206  Chamberlain  v.  Williamson,  2  Maule  &  S.  40S;  Lattimore  v.  Simmons, 
13  Serg.  &  R.  183;  Stebbins  v.  Palmer,  1  Pick.  71;  Smith  v.  Sherman,  4  Cush. 
408. 

207  People  v.  Tioga  Common  Pleas,  19  Wend.  73;  Corhegys  v.  Vasse,  IP. 
213;  Tyson  v.  McGuineas,  25  Wis.  656;  Byxbie  v.  Wood,  24  N.  Y.  607; 
Zabriskie  v.  Smith,  13  N.  Y.  322.     Bliss,  Code  PI.  §  38. 

203  McKee  v.  Judd,  12  N.  Y.  622;    Chonteau  v.  Boughton,  100  Mo.  406,  13 
S.  W.  877;   Lazard  v.  Wheeler,  22  Cal.  139;  Tyson  v.  McGuineas,  25  Wis.  656. 
200  Haight  v.  Hayt,  19  N.  Y.  464;  Byxbie  v.  Wood,  24  N.  Y.  607. 
210  Higgins  v.  Breen,  9  Mo.  497. 
2ii  Quin  v.  Moore,  15  N.  Y.  432. 

212  Purple  v.  Hudson  River  R.  Co.,  4  Duer,  74;  Rice  v.  Stone,  1  Allen  (Mass.) 
566. 

213  Noonan  v.  Orton,  34  Wis.  259. 


Ch.    9]  ASSIGNMENTS.  241 

In  this  connection  it  should  be  stated  that  certain  assignments  are 
void,  both  at  law  and  in  equity,  on  grounds  of  public  policy.  In 
this  class  are  included  assignments  which  partake  of  the  nature  of 
champerty  and  maintenance.214  So,  in  England,  the  salaries  of  pub- 
lic officers  cannot  be  assigned,  on  the  theory  that  they  are  given  to 
maintain  the  dignity  of  their  offices,  and  to  secure  the  proper  dis- 
charge of  the  duties  thereof.215  In  several  recent  American  cases 
it  has  also  been  held  that  an  assignment  of  the  salary  of  a  public 
officer  not  yet  due  is  void.216  By  act  of  congress,  pensions  are  also 
not  assignable.217 

In  many  of  the  states  special  statutes  have  been  passed,  denning 
what  choses  in  action  may  be  assigned.  Thus,  in  New  York  any 
claim  or  demand  may  be  transferred,  except  for  personal  injury  or 
breach  of  promise  to  marry,  or  founded  on  a  grant  void  by  statute, 
or  where  the  transfer  is  forbidden  by  statute  or  is  contrary  to  pub- 
lic policy.218 

SAME— EQUITABLE    ASSIGNMENTS. 

161.  An  assignment  of  a  mere  possibility  or  expectancy 
■will  be  enforced  in  equity  whenever  the  possibility  or  ex- 
pectancy becomes  a  vested  interest  or  possession.219 

162.  An  order  made  payable  out  of  a  particular  fund 
then  due  or  to  become  due  from  the  drawee  to  the  drawer 
operates  as  an  equitable  assignment  of  the  fund  to  the 
payee. 

214  Bradlaugh  v.  Newdegate,  11  Q.  B.  Div.  1;  Dorwin  v.  Smith,  35  Vt.  69; 
Thurston  v.  Percival,  1  Pick.  415;  Coquillard's  Adm'r  v.  Bears,  21  Ind.  479; 
Martin  v.  Veeder,  20  Wis.  466. 

215  Davis  v.  Duke  of  Marlborough,  1  Swanst.  74;  Arbuthnot  v.  Norton,  5 
Moore,  P.  C.  219;  Wells  v.  Foster,  8  Mees.  &  W.  149. 

2ie  Bliss  v.  Lawrence,  58  N.  Y.  442;  Township  of  Wayne  v.  Cahill,  49  N. 
J.  Law,  144,  148,  6  Atl.  621;  Field  v.  Chipley,  79  Ky.  2G0;  Bangs  v.  Dunn, 
66  Cal.  72,  4  Pac.  963;  Schloss  v.  Hewlett,  81  Ala.  266,  1  South.  263;  Shannon 
v.  Bruner,  36  Fed.  147;  Clark,  Cont.  419. 

217  Act  Feb.  28,  1883. 

218  Code  Civ.  Proc.  N.  Y.  §  1910. 
2i8  3  Pom.  Eq.  Jur.  §  1287. 

eq  jur,— 16 


242  PROPERTY    IN    EQUITY MORTGAGES,   LIENS,  ETC.  [Cll.   9 

mments  of  PossibM 
Even  after  courts  of  law  recognized  the  validity  of  assignments  of 
choses  in  action,  the  assignment  of  possibilities  or  expectancies  was 
enforced  only  in  equity.  Thus,  the  assignment  of  a  vested  remain- 
der made  by  the  remainder-man  during  the  lifetime  of  the  life  ten- 
ant, being  of  a  mere  possibility,  though  not  good  at  law,  was  held 
valid  in  equity.220  Recent  statutes  in  England  authorize  the  assign- 
ment at  law  of  contingent,  executory,  and  future  possibilities  when 
coupled  with  an  interest  in  real  estate; 221  and  even  broader  stat- 
utes have  been  enacted  in  some  of  the  states  authorizing  the  assign- 
ment at  law  of  possibilities  coupled  with  an  interest  in  either  real 
or  personal  property.222  These  statutes  leave  untouched  the  assign- 
ment of  possibilities  or  expectancies  not  coupled  with  an  interest, 
and  hence  such  an  assignment  is  still  enforced  only  in  equity.  Thus, 
nonexistent  property,  or  property  to  be  acquired  at  a  future  time, 
is  assignable  in  equity;223  such  as  the  future  cargo  of  a  ship,224  or 
future  patent  rights.226  To  render  such  assignment  effective,  how- 
ever, there  must  be  no  uncertainty  as  to  the  property  intended  to 
pass; 22e  and  words  imputing  a  present  transfer  of  property  must  be 
employed,  as  distinguished  from  a  mere  power  to  deal  with  the  prop- 

220  Warmstrey  v.  Tanfield,  1  Ch.  29,  2  White  &  T.  Lead.  Cas.  Eq.  729.  Other 
assignment  of  expectancies  held  valid  in  equity:  Of  heirs  at  law,  Hobson 
v.  Trevor,  2  P.  Wins.  191;  of  next  of  kin  of  living  person,  Hinde  v.  Blake,  3 
Reav.  235:  of  interest  which  a  person  expects  under  the  will  of  a  living  person, 
Beckloy  v.  Newland,  2  P.  Wms.  182;  of  share  to  which  a  person  may  become 
entitled  under  an  appointment,  Musprat  v.  Gordon,  1  Anst.  34. 

221  8  &  9  Vict.  c.  106,  §  6. 

222  l  Rev.  St.  N.  Y.  p.  725,  §  35;  Civ.  Code  Cal.  §§  693,  699,  700,  1045,  1046. 
22s  Holroyd  v.  Marshall.  10  H.  L.  Cas.  191;    Mitchell  v.  Winslow,  2  Story, 

630,  Fed.  Cas.  No.  9,673;  Patterson  v.  Caldwell,  124  Pa.  St.  455,  17  Atl.  18; 
Jones  v.  Mayor,  etc.,  90  N.  Y.  387;  Kimball  v.  Gafford,  78  Iowa,  65,  42  N. 
W.  583.  The  same  principle  applies  to  mortgages  of  property  to  be  acquired 
in  the  future.  Rutherford  v.  Stewart,  79  Mo.  216;  Ludlum  v.  Rothschild, 
41  Minn.  219,  43  N.  W.  137. 

224  Lindsay  v.  Gibbs,  22  Beav.  522;  Mitchell  v.  Winslow,  2  Story,  630,  Fed. 
Cas.  No.  9,673. 

225  Printing  &  Numerical  R.  Co.  v.  Sampson,  L.  R.  19  Eq.  462.  Contra, 
Regan  Vapor-Engine  Co.  v.  Pacific  Gas-Engine  Co.,  1  C.  C.  A.  169,  49  Fed.  68. 

226  Tadman  v.  D'Epineuil,  20  Ch.  Div.  75S. 


Ch.  9]  ASSIGNMENTS.  243 

erty  when  it  is  acquired.227  On  the  same  principle,  it  has  been  held 
that  future  wages,  to  be  earned  under  a  subsisting  contract  of  em- 
ployment, are  assignable; 228  but  as  to  whether  such  an  assignment 
is  valid  when  there  is  no  subsisting  contract  the  authorities  vary.229 

Order  on  Specific  Fund. 

The  principle  that  an  order  drawn  against  a  particular  fund 
operates  as  an  assignment  was  announced  in  the  leading  case  of  Kow 
v.  Dawson.230  To  become  effective  as  an  assignment,  the  order  must 
make  an  appropriation  of  the  fund.231  An  order  drawn  generally 
on  the  drawee,  payable  in  the  first  instance  on  the  credit  of  the 
drawer,  and  without  regard  to  the  source  from  which  the  money 
used  for  its  payment  is  obtained,  does  not  operate  as  an  assignment, 
though  the  drawer  designates  a  particular  fund  out  of  which  the 
drawee  is  subsequently  to  reimburse  himself  for  the  payment,  or  a 
particular  account  to  which  it  is  to  be  charged.232  An  ordinary 
draft,  not  drawn  on  any  particular  fund,  does  not  operate  as  an  as- 
signment ; 233  and  by  the  weight  of  authority  a  check  is  on  the  same 
footing.234 

227  Reeve  v.  Whitmore,  4  De  Gex,  J.  &  S.  1,  1G-18. 

228  Emery  v.  Lawrence,  8  Cush.  151;  Hartley  v.  Tapley,  2  Gray,  565;  Field 
v.  Mayor,  etc.,  6  N.  Y.  179;  Appeal  of  Riddlesburg  Coal  &  Iron  Co.,  114  Pa. 
St.  58,  6  Atl.  381;   Haynes  v.  Thompson,  80  Me.  125,  13  Atl.  276. 

229  Held  assignable  in  Edwards  v.  Peterson,  80  Me.  367,  14  Atl.  936;  Contra, 
Lehigh  Val.  R.  Co.  v.  Woodring,  116  Pa.  St.  513,  9  Atl.  58;  Mullhall  v.  Quinn, 
1  Gray,  105. 

230  i  Ves.  Sr.  331,  2  White  &  T.  Lead.  Cas.  Eq.  731. 

231  Laclede  Bank  v.  Schuler,  120  U.  S.  511,  516,  7  Sup.  Ct.  644. 

232  Brill  v.  Tuttle,  81  N.  Y.  454,  457.  See,  also,  Ex  parte  Carruthers,  3  De 
Gex  &  S.  570;  Kelley  v.  Mayor,  etc.,  of  Brooklyn,  4  Hill,  265. 

233  Shand  v.  Du  Buisson,  L.  R.  18  Eq.  283;  Kimball  v.  Donald,  20  Mo.  577; 
First  Nat.  Bank  v.  Dubuque  S.  W.  Ry.  Co.,  52  Iowa,  378,  3  N.  W.  395;  Hol- 
brook  v.  Payne,  151  Mass.  3S3,  24  N.  E.  210;  Cash  man  v.  Harrison,  90  Cal. 
297,  27  Pac.  283;  Manderville  v.  Welch,  5  Wheat.  277;  Grammel  v.  Carmer, 
55  Mich.  201,  21  N.  W.  418. 

234  Hopkinson  v.  Forster,  L.  R.  19  Eq.  74:  Attorney  General  v.  Continental 
Life  Ins.  Co.,  71  N.  Y.  325;  O'Connor  v.  Mechanics'  Bank,  124  N.  Y.  324,  26 
N.  E.  816;  Florence  Min.  Co.  v.  Brown,  124  U.  S.  385,  8  Sup.  Ct.  531;  Harri- 
son v.  Wright,  100  Ind.  515;  National  Bank  of  America  v.  Indiana  Banking 
Co.,  114  HI.  4S3,  2  N.  E.  401;  Hemphill  v.  Yerkes,  132  Pa.  St.  545,  19  Atl.  342; 
Pease  v.  Landauer,  63  Wis.  20,  22  N.  W.  847. 


244  PROPERTY    IN    EQUITY — MORTGAGES,  LIENS,  ETC.  [Ch.  9 

Any  winds,  however,  which  show  an  intention  to  appropriate  the 
fund  to  the  payee  arc,  if  supported  by  a  valuable  consideration,  suf- 
ficient to  effect  a  valid  assignment.  Writing  is  not  necessary  if 
there  is  clear  proof  of  an  oral  charge.235 

The  assignment,  however,  is  not  complete  until  it  has  been  com- 
municated to  the  intended  assignee.  Thus,  a  mere  mandate  from 
a  principal  to  his  agent  to  pay  a  debt  out  of  a  certain  fund  gives  the 
creditor  no  specific  charge  on  that  fund.236  Until  such  mandate 
is  communicated  to  the  creditor,  and  assented  to  by  him,  it  may  be 
revoked;237  but,  after  such  communication  the  agent  becomes  the 
debtor  of  the  assignee,  and  the  order  cannot  then  be  counter- 
manded.238 

Notice,  When  Necessary. 

An  equitable  assignment  is  complete,  as  between  assignor  and 
assignee,  though  no  notice  thereof  is  given  to  the  depositary  or  holder 
of  the  fund ; 239  nor  is  notice  necessary  as  against  a  person  standing 
in  the  same  position  as  the  assignor;  for  instance,  a  volunteer,240  or 
attaching  creditor.241 

To  bind  the  holder  of  the  fund,  however,  notice  is  necessary.  If 
none  is  given,  the  holder  may  discharge  himself  by  paying  the  as- 
signor.242 Indeed,  the  practical  distinction  between  an  eauirnble 
assignment  of  a  fund  and  an  order  or  draft  not  amounting  to  such 
assignment  seems  to  be  that  notice  will  fix  the  liability  of  the  drawee 
in  case  of  assignment,  but  acceptance  is  necessary  to  charge  him 
on  a  draft 


235  Official  Receiver  v.  Tailby.  18  Q.  B.  Div.  25. 

zse  Morroll  v.  Wootten,  in  Reav.  197;   White  v.  Colemnn.  127  Mass.  34. 

237  Scott  y.  Rorcher.  3  Mor.  652. 

238  Fitzgerald  v.  Stewart,  2  Russ.  &  M.  457. 

239  Jones  v.  Gibbons,  9  Ves.  410;  Cook  v.  Black,  1  Hare,  390;  Williams  v. 
Insersoll,  89  N.  Y.  508 

240  Justice  v.  Wynne,  12  Ir.  Ch.  289. 

241  Pickering  v.  Ilfracombe  Ry.  Co.,  L.  R.  3  C.  P.  235;  Williams  v.  Inger- 
soll,  89  N.  Y.  508;   Dix  v.  Cobb,  4  Mass.  508. 

242  Xorrish  v.  Marshall,  5  Matld.  475;  Switzer  v.  Noffsinger,  82  Va.  518,  521; 
Van  Keuren  v.  Corkins,  G6  JM.  Y.  77;  Laclede  Bank  v.  Schuler,  120  U.  S.  511, 
7  Sup.  Ct  G44;  Renton  v.  Monnier,  77  Cal.  449,  19  Pac.  820.  See,  also,  Dale  v. 
Kimpton,  4C>  Vt.  7U;   McWilliams  v.  Webb,  32  Iowa,  577. 


Ch.   9]  ASSIGNMENTS.  245 

Again,  if  the  assignor  makes  a  subsequent  assignment,  the  gen- 
eral rule  is  that  the  second  assignee  gains  priority  by  giving  notice 
before  the  first  does.243  The  principle  is  the  same  as  that  which 
requires  the  assignor  of  a  personal  chattel  to  take  every  step  in  his 
power  to  reduce  it  into  possession;  and,  in  case  of  his  neglect,  post- 
pones him  to  a  subsequent  assignee  for  value  who  takes  without 
notice.  Of  the  two  parties  one  must  suffer;  and  equity  will  not 
assist  the  one  prior  in  time  if,  by  his  negligence,  the  possessor  has 
been  enabled  to  deceive  the  second  assignee.  This  rule  has,  how- 
ever, been  rejected  in  some  states,  and  the  first  assignee  is  protected, 
though  he  gave  no  notice.244 

SAME— ASSIGNMENT    SUBJECT    TO    EQUITIES. 

163.  An  assignee  of  a  chose  in  action  takes  it  subject  to 
all  equities  existing  against  the  assignor,  except  in  the 
case  of  negotiable  paper. 


245 


"A  purchaser  of  a  chose  in  action  must  always  abide  by  the  case 
of  the  person  from  whom  he  buys." 246  Thus,  if  the  assigned  debt 
is  subject  to  a  set-off,  the  assignee  is  liable  to  the  set-off;247  if  the 
debt  is  payable  only  on  condition,  the  condition  is  binding  on  the 
assignee;248    and  the  assignee  of  a  mortgage  takes  it  subject  to  all 

243  Dearie  v.  Hall,  3  Russ.  1,  30,  4S;  Brice  v.  Bannister,  3\Q.  B.  Div.  569; 
Spain  v.  Hamilton.  1  Wall.  604,  624;  Murdoch  v.  Finney,  21  Mo.v138. 

244  Thayer  v.  Daniels,  113  Mass.  129;  Fairbanks  v.  Sargent,  164  N.  Y.  108, 
9  N.  E.  870;  Kennedy  v.  Parke,  17  N.  J.  Eq.  415.  These  decisions  are  supported 
by  the  principle  that  an  assignee  of  a  chose  in  action  takes  subject  to  all  eq- 
uities. 

245  Callahan  v.  Edwards,  32  N.  Y.  483,  486;  Fairbanks  v.  Sargent,  104  N.  Y. 
116,  9  N.  E.  108;  Friedlander  v.  Texas  &  P.  Ry.  Co.,  130  U.  S.  416,  9  Sup.  Ct. 
570;  East  Birmingham  Land  Co,  v.  Dennis,  85  Ala.  565,  5  South.  317;  Jeffries 
v.  Evans,  6  B.  Mon.  119;  Kamena  v.  Huelbig,  23  N.  J.  Eq.  7S. 

246  per  Lord  Thurlow,  in  Davies  v.  Austen,  1  Ves.  Jr.  247. 

247  Ex  parte  Mackenzie,  L.  R.  7  Eq.  240;  Cavendish  v.  Geaves,  24  Beav.  163, 
173;  Loomis  v.  Loomis,  26  Vt.  198;  Rider  v.  Johnson,  20  Pa.  St.  190;  McKen- 
na  v.  Kirk  wood,  50  Mich.  544,  15  N.  W.  898;  Fairbanks  v.  Sargent,  104  N.  Y. 
116,  9  N.  E.  108;  Goldthwaite  v.  National  Bank,  67  Ala.  549;  Baker  v.  Kins- 
ley, 41  Ohio  St.  403. 

248  Tooth  v.  Hallett,  4  Ch.  App.  242;  Western  Bank  v.  Sherwood,  29  Barb. 
383. 


246  PROPERTY    IN    EQUITY — MORTGAGES,  LIENS,  ETC.  [Ch.  9 

defenses  which  the  mortgagor  had  against  the  mortgagee.249  These 
cases  illustrate  the  application  of  the  rule  as  between  the  debtor 
and  the  assignee  Does  it  also  apply  as  between  an  assignor  who 
makes  an  assignment  for  a  special  purpose,  and  a  subsequent  as- 
signee to  whom  the  first  assignee  has  assumed  to  transfer  the  com- 
plete title?  In  the  leading  case  of  Bush  v.  Lathrop250  it  was  held 
that  the  second  assignee  stands  in  the  shoes  of  the  first;  and  that 
hence,  where  a  mortgagee  assigns  a  mortgage  as  security  for  a  much 
smaller  sum  than  the  mortgage  debt,  and  the  assignee  transfers  the 
mortgage  for  its  full  face  value  to  a  purchaser  without  notice,  the 
mortgagee  may  compel  a  return  of  the  mortgage  by  payment  of  the 
amount  secured,  and  not  the  face  of  the  mortgage  or  the  sum  paid 
by  the  purchaser.251  In  the  case  of  corporate  stock,  however,  which 
is  of  a  quasi  negotiable  character,  the  rule  is  that  a  stockholder 
who  clothes  another  with  the  apparent  title  is  estopped  to  assert 
his  rights  as  against  a  bona  fide  purchaser  from  the  assignee  for 
value  and  without  notice.252 

In  the  case  of  negotiable  paper,  custom  and  statutes  have  com- 
bined to  render  the  title  of  a  bona  fide  purchaser  for  value  before 
maturity  perfect,  as  against  the  maker,  whatever  defenses  the  latter 
may  have  had  against  the  payee.253 

249  Hill  v.  Hoole,  116  N.  Y.  299,  302,  22  N.  E.  547;  Bennett  v.  Bates,  94  N.  Y. 
354,  3G3;  Theyken  v.  Howe  Mach.  Co..  109  Pa.  St.  95;  Tabor  v.  Foy,  56  Iowa, 
539,  9  N.  W.  897.  Though  the  mortgage  is  given  to  secure  a  negotiable  note, 
the  fact  that  the  note,  as  well  as  the  mortgage,  is  assigned  to  a  bona  fide  pur- 
chaser before  maturity,  does  not  enable  the  assignee  to  take  a  mortgage  dis- 
charged of  equities  in  favor  of  the  mortgagor.  Scott  v.  Magloughlin,  133  111. 
33,  24  N.  E.  1030;  Redin  v.  Bi-anhan,  43  Minn.  283,  45  N.  W.  445;  Woodruff 
v.  Morristown  Inst.,  34  N.  J.  Eq.  174.  Contra,  Taylor  v.  Page,  6  Allen,  86; 
Spence  v.  Mobile  &  M.  R.  Co.,  79  Ala.  576;  Cooper  v.  Smith,  75  Mich.  247, 
42  N.  W.  815;  Cornell  v.  Hichins,  11  Wis.  353. 

250  22  N.  Y.  535. 

251  The  same  principle  was  applied  in  Davis  v.  Bechstein,  69  N.  Y.  440,  442; 
Schafer  v.  Reilly,  50  N.  Y.  61;  Trustees  of  Union  College  v.  Wheeler,  61  N. 
Y.  88;   Fairbanks  v.  Sargent,  104  N.  Y.  117,  9  N.  E.  870. 

252  McNeil  v.  Tenth  Nat.  Bank,  46  N.  Y.  325;  Bangor  Electric  Light  &  Power 
Co.  v.  Robinson,  52  Fed.  520. 

253  Ex  parte  City  Bank,  3  Ch.  App.  758. 


Oil.   10]  EQUITABLE    REMEDIES.  24^i 


CHAPTER   X. 

EQUITABLE     REMEDIES— ACCOUNTING— CONTRIBUTION— EXONER- 
ATION—SUBROGATION  AND  MARSHALING. 


164. 

Accounting. 

165-167. 

Application  of  Payments. 

168. 

Contribution. 

169. 

Exoneration. 

170. 

Subrogation. 

171. 

Marshaling. 

We  come  now  to  the  consideration  of  that  department  of  equity 
jurisprudence  where  its  jurisdiction  rests  chiefly  on  its  distinctive 
procedure.  For  breach  of  contract,  for  perpetration  of  a  fraud,  for 
the  infringement  of  a  right,  an  action  for  money  damages  was,  as 
a  rule,  the  only  remedy  afforded  by  the  common  law.  Equity,  how- 
ever, took  a  different  view,  and  held  that  in  many  cases  damages 
did  not  afford  adequate  relief.  Hence  it  assumed  jurisdiction  to 
grant  its  own  peculiar  remedies;  such  as  specific  performance,  in- 
junction, cancellation,  reformation,  etc.  It  must,  however,  be  ad- 
mitted that  it  is  impossible  to  draw  any  clearly-defined  line  between 
those  matters  in  which  the  jurisdiction  of  equity  has  arisen  from 
the  distinctive  character  of  its  principles  and  those  in  which  it  is 
to  be  ascribed  to  the  superiority  or  peculiarity  of  its  procedure. 

ACCOUNTING. 

164.  Equity  -will  assume  jurisdiction  in  matters  of  ac- 
count: 

(a)  Where  a  fiduciary  relation  exists  between  the  par- 

ties. 

(b)  Where  there  are  mutual  accounts  between  the  par- 

ties. 

(c)  Where  there  are  circumstances  of  great  complica- 

tion, though  the  accounts  are  not  mutual.1 

i  Snell,  Eq.  pp.  610-612;   3  Pom.  Eq.  Jur.  §  1421. 


2  IS  EQUITABLE    REMEDIES.  [Cll.    10 

One  of  the  most  ancient  common-law  actions  was  the  action  of 
accoimt  1 1  could,  however,  be  brought  only  in  a  limited  class  of 
cases.2  The  proceeding  under  it  was  cumbersome  in  the  extreme, 
and  courts  of  common  law  could  not  compel  a  discovery  from  the 
parties,  who  were  incompetent  to  testify.3  It  is  not  surprising, 
therefore,  that  the  common-law  action  of  account  should  have  fallen 
into  disuse.  It  was  to  some  extent  supplanted  at  law  by  the  ac- 
tion of  assumpsit.  The  equitable  procedure,  however,  was  greatly 
superior  to  that  of  the  common-law  tribunals,  whatever  form  of 
action  might  be  adopted.  A  master  in  chancery  had  abundant 
power  to  examine  the  parties  on  oath,  to  make  inquiries  from  all 
proper  persons  by  testimony  on  oath,  and  to  require  the  production 
of  all  necessary  documents. 

It  is  obvious  that  the  jurisdiction  of  equity  in  matters  of  account 
brought  a  great  variety  of  business  within  its  purview.  As  incident 
to  accounts,  equity  took  "cognizance  of  the  administration  of  per- 
sonal assets;  consequently,  of  debts,  legacies,  the  distribution  of 
the  residue,  and  the  conduct  of  executors  and  administrators.  As 
incident  to  accounts,  they  also  took  concurrent  jurisdiction  of  tithes 
and  all  questions  relating  thereto;  of  all  dealings  in  partnership, 
and  many  other  mercantile  transactions;  and  so  of  bailiffs,  factors, 
and  receivers." 4  In  more  recent  times  the  equity  jurisdiction  has 
been  further  extended  to  the  dissolution  and  winding  up  of  corpora- 
tions, chiefly  because  of  its  superior  procedure  as  to  accounting. 

The  jurisdiction  of  equity  does  not,  however,  seem  to  extend  to 
all  cases  of  account,  but  is  limited  to  the  following  classes:  (1) 
Equity  assumes  jurisdiction  of  an  action  for  an  accounting  where 

2  Privity  between  the  parties,  either  of  contract  or  in  law,  was  originally 
necessary  to  sustain  the  action.  It  would  lie  against  a  bailiff  or  receiver  ap- 
pointed by  the  party  or  against  a  guardian.  Afterwards,  by  the  law  merchant, 
it  \\:is  extended  so  that  a  merchant  might  have  an  account  against  another. 
Snell,  Eq.  p.  GOO. 

3  The  auditors  appointed  to  take  the  account  could  not  until  4  Anne,  c.  10, 
examine  the  parties  before  thom  on  oath.  Whenever  a  disputed  item  was  in 
question,  the  parties  might  join  issue  thereon  or  demur,  and  bring  their  dis- 
pute before  the  court,  and  thus  the  inquiry  might  be  almost  interminably 
protracted.     Smith,  Prin.  Eq.  p.  497. 

4  3  Bl.  Comm.  437.  In  the  United  States,  special  courts  have  been  created 
for  the  purpose  of  administering  the  estates  of  deceased  persons.  The  law 
of  partnership  and  of  corporations  is  too  broad  to  be  adequately  treated  hern. 


€h.   10]  ACCOUNTING.  249 

the  parties  stand  in  a  fiduciary  relation;  as,  principal  and  agent,5 
trustee  and  cestui  que  trust.8  (2)  Equity  assumes  jurisdiction  where 
the  accounts  are  mutual.  Accounts  are  mutual,  within  the  mean- 
ing of  this  rule,  where  each  of  two  parties  has  received  and  also 
paid  on  the  other's  account.  Where  one  party  only  has  received 
and  paid  moneys,  the  question  is  only  one  of  receipts  on  the  one 
side  and  payments  on  the  other,  and  it  is  a  question  of  mutual 
set-off;  but  it  is  otherwise  where  each  party  has  received  and  paid.7 
(3)  Where  the  account  is  not  mutual,  as  above  defined,  equity  will 
not  assume  jurisdiction  unless  there  are  circumstances  of  great  com- 
plication.8 In  addition  to  the  foregoing  classes  of  cases,  the  remedy 
of  accounting  is  incidental  to  and  accompanies  that  of  injunction; 
for  instance,  in  suits  for  infringement  of  patents  or  copyright,  and 
in  respect  of  waste. 

It  should  also  be  noted  that  now,  in  most  of  the  American  states, 
as  well  as  in  England,  courts  are  empowered  in  legal,  as  well  as  in 
equitable,  actions  to  direct  a  trial  before  a  referee  where  the  ex- 
amination of  a  very  long  account  on  either  side  is  necessary. 

The  principles  by  which  courts  of  equity  are  guided  in  taking  ac- 
counts will  now  be  noticed. 

SAME— APPLICATION    OP   PAYMENTS. 

165.  A  debtor  making  a  payment  has  a  right  to  appro- 
priate it  to  the  discharge  of  any  debt  due  his  creditor. 

b  Mackenzie  v.  Johnston,  4  Madd.  373;  Rippe  v.  Stogdill,  61  Wis.  38,  20  N.  W. 
645;  Webb.  v.  Fuller,  77  Me.  568,  1  Atl.  737;  Marvin  v.  Brooks,  94  N.  Y.  71. 
It  has  been  held  that  an  agent  cannot  maintain  an  action  in  equity  against 
his  principal  for  an  accounting  because  the  agent  reposes  no  confidence  in 
the  principal.  Padwick  v.  Stanley,  9  Hare,  627;  Smith  v.  Leveaux,  2  De 
Gex,  J.  &  S.  1. 

e  Docker  v.  Somes,  2  Mylne  &  K.  664.  The  equitable  jurisdiction  to  compel 
an  accounting  between  partners  rests  on  this  rule.    Pars.  Partn.  508. 

7  Phillips  v.  Phillips,  9  Hare,  471;  Padwick  v.  Hurst,  18  Beav.  575;  Fluker 
v.  Taylor,  3  Drew,  183;  Garner  v.  Reis,  25  Minn.  475;  Rogers  v.  Yarnell,  51 
Ark.  19S,  10  S.  W.  622;   Adams'  Appeal,  113  Pa.  St.  449,  6  Atl.  100. 

s  O'Connor  v.  Spraight,  1  Schoales  &  L.  303;  Uhlman  v.  New  York  Life 
Ins.  Co.,  109  N.  Y.  421,  17  N.  E.  363;  McCulla  v.  Beadleston,  17  R.  I.  20,  20 
AtL  11;  Pierce  v.  Equitable  Assur.  Soc,  145  Mass.  GO,  12  N.  E.  858;  Attalla 
Min.  &  Manuf'g  Co.  v.  Winchester  (Ala.)  14  South.  565. 


250  EQUITABLE    REMEDIES.  [Ch.   10 

Where  there  have  been  running  accounts  between  debtor  and 
creditor,  and  various  oayments  have  been  made,  and  various  credits 
given  at  different  times,  it  often  becomes  material  to  ascertain  to 
what  debt  a  particular  payment  made  by  a  debtor  is  to  be  applied. 
The  first  rale  on  the  subject  is  that  the  debtor  may  apply  the  pay- 
ment to  the  discharge  of  whatever  debt  he  pleases,9  and  the  creditor 
has  no  right  to  insist  on  a  different  application.10  The  debtor  may 
make  the  application  by  a  stipulation  in  express  terms,11  or  his 
intention  so  to  do  may  be  inferred  from  the  circumstances  of  the 
transaction.  Thus,  where  one  of  the  debts  owing  was  secured,  and 
another  unsecured,  an  intention  to  first  discharge  the  secured  debt 
was  presumed.12  The  debtor's  right  to  make  the  application  is  lost, 
however,  unless  exercised  at  the  time  of  payment.  If  he  does  not 
then  declare  on  what  account  the  money  is  paid,  he  cannot  after- 
wards do  so.18 

166.  If,  at  the  time  of  payment,  there  is  no  express  or 
implied  appropriation  by  the  debtor,  then  the  creditor  has 
the  right  to  make  the  appropriation.14 

Unlike  the  debtor,  the  creditor  has  a  right  to  make  the  applica- 
tion at  any  time  after  payment,  and  before  action  brought  or  ac- 

»  Clayton's  Case,  1  Mer.  572,  575;  Tayloe  v.  Sandiford,  7  Wheat.  13;  Picker- 
ing v.  Day,  2  Del.  Ch.  333,  3  Houst.  (Del.)  474;  Coleman  v.  Slade,  75  Ga.  61; 
Trentman  v.  Fletcher,  100  Ind.  105;  Ross  v.  Crane,  74  Iowa,  375,  37  N.  W.  959; 
Reed  v.  Boardman,  20  Pick.  441;   Jones  v.  Williams,  39  Wis.  300. 

io  Anon,  Cro.  Eliz.  68;  Eylar  v.  Read,  60  Tex.  3S7;  Libby  v.  Hopkins,  104 
U.  S.  303;  Wetherell  v.  Joy,  40  Me.  325. 

ii  Ex  parte  Imbert,  1  De  Gex  &  J.  152;  Stewart  v.  Keith,  12  Pa.  St  238; 
Hansen  v.  Ronnsavell,  74  111.  238;  Gay  v.  Gay,  5  Allen  (Mass.)  157. 

12  Young  v.  English,  7  Beav.  10;  Holley  v.  Hardeman,  76  Ga.  328;  Marx  v. 
Schwartz,  14  Or.  177,  12  Pac.  253. 

13  Wilkinson  v.  Sterne,  9  Mod.  427;  Aderholt  v.  Embry,  7S  Ala.  185;  Long 
v.  Miller,  93  N.  C.  233. 

uLysaght  v.  Walker,  5  Bligh  (N.  S.)  1,  28;  Brady  v.  Hill,  1  Mo.  315;  John- 
son v.  Thomas,  77  Ala.  367;  Perry  v.  Bozeman,  67  Ga.  643;  National  Bank  v. 
Bisler,  83  N.  Y.  51;  Bird  v.  Davis,  14  N.  J.  Eq.  467;  Blackstone  Bank  v. 
Hill,  10  Pick.  129. 


Ch.    10]  ACCOUNTING.  251 

count  settled  between  him  and  his  debtor.18  The  creditor's  right 
to  make  such  application  is  not,  however,  unUmited.  He  may  not 
indirectly  secure  payment  of  an  illegal  debt  by  appropriating  a  gen- 
eral payment  to  its  discharge.18  But  a  debt  barred  by  the  statute 
of  limitations  is  not  illegal;  and  if,  therefore,  a  general  payment 
is  made,  without  appropriation  by  the  debtor,  it  may  be  appropri- 
ated by  the  creditor  to  the  discharge  of  a  statute-barred  debt.17 
The  creditor  cannot,  however,  by  making  such  an  appropriation  in 
part  payment  of  the  debt,  take  it  out  of  the  operation  of  the  statute.18 

167.  In  the  absence  of  an  appropriation  by  the  parties, 
the  law  "will  make  the  appropriation  according  to  the 
order  of  items  of  the  account;  the  first  item  on  the  debit 
side  being  the  item  discharged  or  reduced  by  the  first 
item  on  the  credit  side. 

This  proposition  was  decided  and  is  known  as  the  rule  in  Clayton's 
Case,19  and  it  has  been  repeatedly  followed  both  in  England  and  in 
this  country.20  Some  of  the  courts  have,  however,  manifested  a 
tendency  to  follow  the  Koman  law,  which  appropriates  the  payment 
to  the  most  burdensome  debt.21     And  when  there  are  several  debts 

is  Philpott  v.  Jones.  2  Adol.  &  E.  41,  44;  Callahan  v.  Boazman,  21  Ala.  24G; 
Moss  v.  Adams,  4  Ired.  Eq.  (N.  C.)  42,  51;  Johnson  v.  Thomas,  77  Ala.  367; 
Haynes  v.  Waite,  14  Cal.  446. 

is  Wright  v.  Laing,  3  Barn.  &  C.  165;  Turner  v.  Turnei",  80  Va.  379;  Gill  v. 
Rice,  13  Wis.  549;  Phillips  v.  Moses,  65  Me.  70;  Rohan  v.  Hanson,  11  Cush. 
(Mass.)  44;  Greene  v.  Tyler,  39  Pa.  St.  361;  Richards  v.  Columbia,  55  N.  H.  96. 

it  Mills  v.  Fowkes,  5  Bing.  (N.  C.)  455,  461;  Armistead  v.  Brooke,  18  Ark.  521. 

is  Nash  v.  Hodgson,  6  De  Gex,  M.  &  G.  474;  Armistead  v.  Brooke,  18  Ark. 
521.  See,  however,  Ayer  v.  Hawkins,  19  Vt.  26.  Application  may  be  made 
to  debt  unenforceable  under  statute  of  frauds.  Haynes  v.  Nice,  100  Mass. 
327;   Murphy  v.  Webber,  61  Me.  478. 

i»  1  Mer.  585. 

20  Pemberton  v.  Oakes,  4  Russ.  154,  168;  Bank  of  Scotland  v.  Christie,  8 
Clark  &  F.  214;  Pickering  v.  Day,  2  Del.  Ch.  333,  3  Houst.  474;  Smith  v.  Loyd, 
11  Leigh,  512;  Crompton  v.  Pratt,  105  Mass.  255;  Willis  v.  Mclntyre,  70  Tex. 
34,  7  S.  W.  594;  Allen  v.  Culver,  3  Denio,  284;  Thompson  v.  St.  Nicholas 
Nat.  Bank,  113  N.  Y.  325,  21  N.  E.  57. 

2i  Story,  Eq.  Jur.  §  459d;   Magarity  v.  Shipman,  82  Va   784,  1  S.  E.  109. 


252  EQUITABI.K    REMEDIES.  [Ch.    10 

owing  to  a  creditor,  some  of  which  are  barred  by  the  statute  of  limi- 
tations and  some  not,  and  he  does  not  expressly  appropriate  a  pay- 
ment to  those  that  are  barred,  the  law  will  appropriate  the  payment 
to  those  not  barred.-'-  In  this  respect,  therefore,  the  law  appro- 
priates the  paymenl  to  the  besl  interest  of  the  debtor.  It  should 
also  be  stated  that,  where  a  debt  bearing  interest  stands  against 
;i  debtor,  general  payments  made  by  him  are  first  to  be  applied  in 
payment  of  interest,  any  balance  beyond  what  is  necessary  for  that 
being  then  credited  in  reduction  of  the  principal.23 

CONTRIBUTION. 

168.  A  joint,  or  a  joint  and  several,  obligor  on  a  con- 
tract, or  obligation  in  the  nature  of  contract,  -who  has  paid 
or  satisfied  more  than  his  proportionate  share  of  the  obli- 
gation, is  entitled  to  contribution  from  his  co-obligors,  so 
as  to  equalize  the  common  burden.24 

The  right  to  contribution  is  founded  on  the  maxim,  "Equality  is 
equity,"  and  depends  on  the  general  principles  of  equity,  and  not  on 
contract.25     The  relief  has  been  granted,  as  we  have  seen,  to  one 

22  Nash  v.  Hodgson,  G  De  Gex,  M.  &  G.  474. 

23  Chase  v.  Box,  Freem.  Ch.  261;  People  v.  New  York  Co.,  5  Cow.  (N.  Y.) 
331;  Monroe  v.  Fohl,  72  Cal.  5GS,  14  Pae.  514;  Morgan  v.  Michigan  Air-Line 
R.  Co.,  57  Mich.  430,  25  N.  W.  161,  and  26  N.  W.  865. 

24  3  Pom.  Eq.  Jur.  §  1418. 

25  Dering  v.  Earl  of  Winchelsea,  1  Cox.  318,  1  White  &  T.  Lead.  Cas.  Eq. 
106;  Stirling  v.  Forrester,  3  Bligh,  590;  Norton  v.  Coons,  6  N.  Y.  33,  40;  Wells 
v.  Miller,  66  N.  Y.  255;  Hendrick  v.  Whittemore,  105  Mass.  23;  Chipman  v. 
Morrill,  20  Cal.  131,  135;  Robertson  v.  Deatherage,  82  HI.  511;  Camp  v.  Bost- 
wlck,  20  Ohio  St.  337.  After  the  action  of  assumpsit  became  established, 
courts  of  law  gave  relief  by  way  of  contribution,  on  the  theory  of  implied 
contract  Jeffries  v.  Ferguson,  87  Mo.  244.  The  legal  remedy  was,  however, 
never  as  efficient  as  the  equitable.  Thus,  where  there  were  several  obligors, 
and  one  became  insolvent,  the  one  who  paid  the  entire  debt  could  at  law  have 
recovered  only  an  aliquot  part  of  the  whole,  calculated  according  to  the  origi- 
nal number  of  co-obligors.  Cowell  v.  Edwards,  2  Bos.  &  P.  268.  In  equity, 
however,  he  can  compel  the  remaining  co-obligors  to  contribute  ratably  with 
himself.  Hitchman  v.  Stewart,  3  Drew.  271;  Breckinridge  v.  Taylor,  5 
Dana,  110;  Whitman  v.  Porter,  107  Mass.  522;  Hodgson  v.  Baldwin,  65  111. 
532;  McKenna  v.  George,  2  Rich.  Eq.  (S.  C.)  15. 


Ch.    10]  EXONERATION.  253 

jointly  liable  for  the  payment  of  a  mortgage  debt,  who  has  paid 
more  than  his  proportionate  share  on  redemption.26  A  partner 
who  has  paid  more  than  his  proportionate  share  of  the  firm  debts 
is  also  entitled  to  contribution  from  his  copartners,  or  out  of  the 
partnership  property; 27  and  a  stockholder  individually  liable  for 
the  corporate  debts,  who  has  paid  more  than  his  proportionate  share 
of  them,  may  enforce  contribution  from  the  other  stockholders.28 
The  most  frequent  application  of  the  rule,  however,  is  to  cases  of 
cosureties.  A  surety  who  has  paid  the  debt  is  not  only  entitled  to 
contribution  from  the  other  sureties,29  but  also  to  the  benefit  of 
any  security  which  any  of  them  may  have  taken  from  the  principal 
debtor  by  way  of  indemnity.30 

Though  the  principle  of  contribution  is  a  constructive  doctrine 
of  equity,  and  not  founded  on  contract,  still  a  person  may,  by  con- 
tract, qualify  or  take  himself  out  of  the  reach  of  the  principle.81 
Again,  the  doctrine  applies  only  to  liabilities  springing  out  of  con- 
tract;   no  right  to  contribution  exists  as  between  wrongdoers.32 


EXONERATION. 

169.  One  secondarily  liable  for  the  payment  of  a  debt, 
not  arising  ex  delicto,  is  entitled  to  exoneration  from  the 
one  primarily  liable. 

26  Ante,  225. 

27  Kelly  v.  Kauffman,  18  Pa.  St.  351;  Logan  v.  Dixon,  73  Wis.  533,  41  N.  W. 
713;   Sears  v.  Starbird,  78  Cal.  225,  20  Pac.  547. 

28  Beach,  Eq.  Jur.  §  832;  Aspinwall  v.  Sacchi,  57  N.  Y.  331;  Ray  v.  Powers, 
134  Mass.  22.     But  see  O'Reilly  v.  Bard,  105  Pa.  St.  569. 

23  Adams,  Eq.  p.  269;  Newcoinb  v.  Gibson,  127  Mass.  396;  Mason  v.  Pier- 
ron,  69  Wis.  585,  34  N.  W.  921;  Stubbins  v.  Mitchell,  82  Ky.  535;  Neilson  v. 
Williams,  42  N.  J.  Eq.  291,  11  Atl.  257;  Moore  v.  Baker,  34  Fed.  1;  Rynear- 
son  v.  Turner,  52  Mich.  7,  17  N.  W.  219. 

so  Steel  v.  Dixon,  17  Ch.  Div.  825;  Agnew  v.  Bell,  4  Watts  (Pa.)  33;  Guild  v. 
Butler,  127  Mass.  386. 

si  Swain  v.  Wall,  1  Ch.  R.  80;   Craythorne  v.  Swinburne,  14  Ves.  160,  163. 

32  Merry  weather  v.  Nixan,  8  Term  R.  186;  Peck  v.  Ellis,  2  Johns.  Ch.  131; 
Churchill  v.  Holt,  131  Mass.  67;  Spaulding  v.  Oakes,  42  Vt.  343;  Seltz  v. 
Unna,  6  WaU.  327. 


254  EQUITABLE    REMEDIES.  [Ch.    10 

Where  a  surety  pays  a  debt  on  behalf  of  the  principal  debtor,  the 
rule  both  at  law  and  in  equity  is  that  he  has  a  right  to  call  upon 
such  debtor  for  reimbursement.33  If  the  surety  discharges  the 
debt  for  less  than  the  full  amount,  he  cannot,  however,  as  against 
his  principal,  make  himself  a  creditor  for  the  whole  amount,  but 
can  only  claim  what  he  has  actually  paid  in  discharge  of  the  debt, 
with  interest.34  The  surety  need  not,  however,  wait  until  he  has 
paid  the  debt.  He  may  maintain  a  suit  in  equity  against  the  debtor 
to  compel  payment  of  the  debt  when  due,  whether  the  surety  has 
actually  been  sued  on  it  or  not;  for  it  is  unreasonable  that  a  man 
should  always  have  a  cloud  hanging  over  him.38 

SUBROGATION. 

170.  Whenever,  to  protect  his  own  rights,  one  not  a 
volunteer  pays  or  satisfies  a  debt  for  -which  another  is 
primarily  responsible,  he  is  substituted  in  equity  in  place 
of  the  creditor,  and  may  enforce  against  the  person  pri- 
marily liable  all  the  securities,  benefits,  and  advantages 
held  by  the  creditor. 

Like  contribution,  subrogation  rests  on  principles  of  equity  and 
justice,  and  may  be  decreed,  though  no  contract  or  privity  of  any 
kind  exists  between  the  parties.38  The  doctrine  has  many  illustra- 
tions in  reported  cases.     Thus,  a  surety,  on  payment  of  the  debt, 

as  Toussaint  v.  Martinnant,  2  Term  R.  105;  Oraythorne  v.  Swinburne,  14 
Ves.  162;  White  v.  Miller,  47  Ind.  385;  Tillotson  v.  Rose,  11  Mete.  (Mass.) 
299;  Kimmel  v.  Lowe,  28  Minn.  265,  9  N.  W.  764;  Rice  v.  Southgate,  16  Gray. 
142;  Konitzky  v.  Meyer,  49  N.  Y.  571;  Merwin  v.  Austin,  58  Conn.  22,  18 
Atl.  1029. 

s*  Reed  v.  Norris,  2  Mylne  &  C.  361,  375;  Blow  v.  Maynard,  2  Leigh  (Va.) 
30;  Delaware  L.  &  W.  R.  Co.  v.  Oxford  Iron  Co.,  38  N.  J.  Eq.  151. 

so  Ranelaugh  v.  Hayes,  1  Vern.  189;  Wooldridge  v.  Norris,  L.  R.  6  Eq.  410; 
Whitridge  v.  Durkee,  2  Md.  Ch.  442;  Hayes  v.  Ward,  4  Johns.  Ch.  123;  Irick 
v.  Black,  17  N.  J.  Eq.  189;  Hellams  v.  Abercrombie,  15  S.  C.  110;  Moore  v. 
Topliff,  107  111.  241. 

86  Gans  v.  Thieme,  93  N.  Y.  225,  232;  Pease  v.  Eagan,  131  N.  Y.  262,  30  N.  E. 
102;  Cotrrell's  Appeal,  23  Pa.  St.  291;  Aetna  Life  Ins.  Co.  v.  Middleport,  124 
U.  S.  534,  8  Sup.  Ct.  625;  Philbrick  v.  Shaw,  61  N.  H.  356. 


Ch.   10]  SUBROGATION.  255 

is  entitled  to  all  the  securities  which  the  creditor  has  against  the 
principal  debtor,  whether  given  at  the  time  of  the  contract  or  sub- 
sequently, and  whether  given  with  or  without  the  knowledge  of  the 
surety  or  of  the  principal.37  If  the  creditor  obtains  a  judgment 
against  the  principal,  the  surety,  on  payment  of  the  debt,  is  subro- 
gated to  the  rights  of  the  creditor  in  the  judgment.38  Negotiable 
paper,  paid  by  an  indorser,  is  kept  alive  for  his  benefit;  and  he 
may  enfore  it  against  prior  indorsers  and  the  maker.39  A  junior 
mortgagee  who  pays  off  a  senior  incumbrance  on  the  land  for  his  own 
protection  is  subrogated  to  all  rights  and  remedies  of  the  senior  in- 
cumbrancer.40 An  insurance  company  which  pays  a  loss  caused  by 
the  negligence  of  a  third  person  is  subrogated  to  all  rights  of  the 
insured  against  such  third  person.41 

Numerous  as  are  the  applications  of  this  principle,  it  neverthe- 
less has  its  limits.  A  mere  volunteer  cannot  invoke  the  aid  of  sub- 
rogation. He  must  have  paid  as  surety,  or  under  some  compulsion 
made  necessary  by  the  adequate  protection  of  his  own  rights;   other- 

37  Mayhew  v.  Crickett,  2  Swanst  1S5;  Pearl  v.  Deacon,  24  Beav.  186;  Lake 
v.  Brutton,  18  Beav.  34;  Lewis  v.  Palmer,  28  N.  Y.  271;  Johnson  v.  Bartlett, 
17  Pick.  477;  Hess'  Estate,  69  Pa.  St  272;  Budd  v.  Olver,  147  Pa.  St.  194,  23 
Atl.  1105;  Frank  v.  Traylor,  130  Ind.  145,  29  N.  E.  4S6. 

38  Parsons  v.  Briddock,  2  Vera.  608;  Townsend  v.  Whitney,  75  N.  Y.  431; 
Fleming  v.  Beaver,  2  Rawle  (Pa.)  128;  German  American  Sav.  Bank  v.  Fritz, 
68  Wis.  390,  32  N.  W.  123;  Crisfield  v.  State,  55  Md.  192;  Smith  v.  Rumsey, 
33  Mich.  183;  Lumpkin  v.  Mills,  4  Ga.  343;  Crawford  v.  Logan,  97  111.  390; 
Schleissmann  v.  Kallenberg,  72  Iowa,  338;  Lyon  v.  Boiling,  9  Ala.  463.  In 
some  of  the  states,  however,  it  is  held  that  payment  by  the  surety  extinguishes 
the  judgment  Adams  v.  Drake,  11  Cush.  (Mass.)  504;  Findlay  v.  Bank  of 
U.  S.,  2  McLean,  44  Fed.  Cas.  No.  4,791. 

so  Beckwith  v.  Webber,  78  Mich.  390,  44  N.  W.  330;  Seixas  v.  Gonsoulin, 
40  La.  Ann.  351,  4  South.  453;  Rushworth  v.  Moore,  36  N.  H.  1SS;  Parker  v. 
Sanborn,  7  Gray  (Mass.)  191;   North  Nat.  Bank  v.  Hamlin,  125  Mass.  506. 

•toMattison  v.  Marks,  31  Mich.  421;  Levy  v.  Martin,  48  Wis.  198,  4  N.  W. 
35;  Yaple  v.  Stephens,  36  Kan.  680,  14  Pac.  222;  Lamb  v.  Montague,  112 
Mass  352. 

41  Burnand  v.  Rodocanachi,  7  App.  Cas.  339;  Deming  v.  Merchants'  Cotton- 
Press  &  Storage  Co.,  90  Tenn.  306,  17  S.  W.  89;  Connecticut  Fire  Ins.  Co.  v. 
Erie  R.  Co.,  73  N.  Y.  399;  Pratt  v.  Radford,  52  Wis.  114,  8  N.  W.  606;  Chicago, 
St.  L.  &  N.  O.  R.  Co.  v.  Pullman  Southern  Car.  Co.,  139  U.  S.  79,  11  Sup.  Ct 
490;  Perrott  v.  Shearer,  17  Mich.  48. 


256  EQUITABLE    REMEDIES.  [Cb.   10 

wise  payment  extinguishes  the  debt.42  Again,  the  principle  will 
not  be  applied  in  favor  of  one  who  has  been  guilty  of  inequitable 
or  illegal  conduct  in  the  transaction.43  "It  is  only  to  prevent  fraud 
and  subserve  justice  that  equity  ingrafts  the  wholesome  provisions 
of  subrogation  or  of  equitable  lien  upon  a  transaction,  and  it  should 
never  be  done  wfhere  it  would  work  injustice."  44 

MARSHALING. 

171.  Where  one  person  has  a  clear  right  to  resort  to 
two  funds,  and  another  person  has  a  right  to  resort  to 
only  one  of  these  two  funds,  the  single  creditor  may  say 
that,  as  between  himself  and  the  double  creditor,  the 
double  creditor  shall  be  put  to  exhaust  the  security  on 
which  the  single  creditor  has  no  claim.45 

The  doctrine  of  marshaling  owes  its  introduction  into  equity  juris- 
prudence to  the  fact  that  at  common  law  a  debt  by  specialty  could 
be  enforced  on  the  debtor's  death,  against  his  land  as  well  as  against 
his  personal  estate;  while  simple  contract  debts  could  be  enforced 
against  the  personalty  only.  Courts  of  equity,  therefore,  laid  down 
the  principle  that  a  person  having  resort  to  two  funds  shall  not  by 
his   choice   disappoint   another   having   one  only.48     The   practice 

42  2  Beach,  Mod.  Eq.  801;  Acer  v.  Hotchkiss,  97  N.  Y.  395,  403;  Sandford  v. 
McLean,  3  Paige,  117;  Aetna  Life  Ins.  Co.  v.  Middleport,  124  U.  S.  534,  8  Sup. 
Ct.  G25;  Desot  v.  Ross,  95  Mich.  81,  54  N.  W.  694;  Woriner  v.  Waterloo  Agri- 
cultural Works,  62  Iowa,  699,  14  IV.  W.  331;  Watson  v.  Wilcox,  39  Wis.  643; 
McNeil  v.  Miller,  29  W.  Va.  480,  2  S.  E.  335;  Wadsworth  v.  Blake,  43  Minn. 
509,  45  N.  W.  1131;  Webster's  Appeal,  86  Pa.  St.  409;  Brice  v.  Watkins,  30 
La.  Ann.  21;  Kitchell  v.  Mudgett,  37  Mich.  S2. 

43  Rowley  v.  Towsley,  53  Mich.  329,  19  N.  W.  20;  Milwaukee  &  M.  R.  Co.  v. 
Soutler,  13  Wall.  517;  Perkins  v.  Hall,  105  N.  Y.  539,  12  N.  E.  48;  Devine  v. 
Harkness,  117  111.  147,  7  N.  E.  52;  Wilkinson  v.  Babbitt,  4  Dill.  207,  Fed.  Cas. 
No.  17,668;  Johnson  v.  Moore,  33  Kan.  90,  5  Pac.  406;  Guckenheimer  v.  Ange- 
vine,  81  N.  Y.  394. 

44  Kelly  v.  Kelly,  54  Mich.  47,  19  N.  W.  580;  D wight  v.  Scranton  &  W.  L. 
Co.,  82  Mich.  624,  47  N.  W.  102. 

45  Per  Lord  Westbury,  in  Dolphin  v.  Aylward,  L.  R.  4  H.  L.  486. 

46  Trimmer  v.  Bayne,  9  Ves.  209,  211;  Aldrich  v.  Cooper,  8  Ves.  382,  2  White 
&  T.  Lead.  Cas.  Eq.  80. 


Ch.    10]  MARSHALING.  257 

adopted  in  the  early  days  was  to  summarily  forbid  the  creditor  with 
two  funds  to  touch  that  which  was  the  sole  resource  of  the  other.47 
The  remedy  by  injunction  is,  however,  rarely  applied  in  modern 
times.48  The  usual  course  is  to  permit  the  double  creditor  to  en- 
force his  claim  as  he  pleases;  but,  if  he  chooses  to  resort  to  the  only 
fund  on  which  the  other  has  a  claim,  that  other  is  subrogated  to  all 
his  rights  against  the  fund  to  which  otherwise  he  could  not  have  re- 
sorted.49 

Though  the  distinction  between  specialty  and  simple  con- 
tract debts  has  long  ago  been  abolished,  the  doctrine  of  marshaling 
has  survived.  Thus,  where  a  senior  mortgage  covers  two  estates, 
and  a  junior  mortgage  covers  one  only  of  these  two,  the  senior  mort- 
gagee must  resort  first  to  the  estate  which  is  alone  subject  to  his 
mortgage,  so  as  to  release  as  much  as  possible  the  estate  which 
is  subject  to  both  mortgages,  and  so  give  the  junior  mortgagee,  whose 
debt  is  solely  charged  on  that  estate,  a  chance  of  getting  paid.50 
Where  a  partner  gives  a  mortgage  covering  both  firm  and  individual 
property  to  secure  a  firm  debt,  an  individual  creditor  of  the  partner 
may  compel  the  firm  creditor  to  exhaust  the  firm  assets  before  having 
recourse  to  the  individual  property.51  A  legatee  whose  legacy  is 
charged  on  land  cannot  enforce  it  out  of  testator's  personal  estate, 
to  the  detriment  of  the  other  legatees  whose  legacies  are  not  thus 
charged ;  and,  if  the  privileged  legatee  does  resort  to  the  personalty, 
the  others  will  be  subrogated  to  his  rights  in  the  realty.52 

It  is  necessary  before  dismissing  this  subject  to  guard  against  a 
too  comprehensive  interpretation  of  the  principle.    It  does  not  ap- 

47  Kerley,  Hist.  Eq.  p.  215. 

48  Evertson  v.  Booth,  19  Johns.  (N.  Y.)  495;  Woolcocks  v.  Hart,  1  Paige 
(N.  Y.)  185. 

49  Milrnine  v.  Bass,  29  Fed.  632;  Ramsey's  Appeal,  2  Watts  (Pa.)  228;  Hud- 
kins  v.  Ward,-  30  W.  Va.  204,  3  S.  E.  600;  Sims  v.  Albea,  72  Ga.  751;  Turner 
v.  Flinn,  67  Ala.  529. 

eo  Tidd  v.  Lister,  3  De  Gex,  M.  &  G.  857;  Equitable  Mortgage  Co.  v.  Lowe 
(Kan.)  35  Pac.  829;  Andreas  v.  Hubbard,  50  Conn.  351;  Sibley  v.  Baker,  23 
Mich.  312;  Millsaps  v.  Bond,  64  Miss.  453,  1  South.  506;  Turner  v.  Flinn,  67 
Ala.  529;  Gusdorf  v.  Ikelheimer,  75  Ala.  148;  Hudson  v.  Dismukes,  77  Va.  242. 

6i  Bass  v.  Estill,  50  Miss.  300. 

62  Hanby  v.  Roberts,  Arnb.  128;  Bonner  v.  Bonner,  13  Ves.  379;  Perry  v. 
Hale,  44  N.  H.  363,  367;   Cryder's  Appeal,  11  Pa.  St.  72. 

EQ.JUR.— 17 


258  EQUITABLE    REMEDIES.  [Ch.    10 

ply  as  between  creditors  of  different  persons.  Thus,  if  a  person  has 
a  demand  against  A.  and  B.  jointly  and  severally,  a  creditor  of  I>. 
alone  cannot  compel  the  former  creditor  to  apply  to  A.  alone,  so  as 
to  leave  the  property  of  B.  free  for  his  separate  debts,  unless  there  is 
some  equity  between  A.  and  B.  themselves  which  would  entitle  B.  to 
a  remedy  against  A.58  Again,  assets  will  not  be  marshaled  in  favor 
of  a  creditor,  to  the  prejudice  of  another  man's  rights.64 

53  Ex  parte  Kendall,  17  Ves.  520;  Meech  v.  Allen,  17  N.  T.  301;  Lloyd  v. 
Galbraith,  32  Pa.  St.  103;  Lee  v.  Gregory,  12  Neb.  282,  11  N.  W.  297;  Huston's 
Appeal,  69  Pa.  St  485. 

o*  Webb  v.  Smith,  30  Ch.  Div.  192;  Gilliam  v.  McCormack,  85  Tenn.  597,  611, 
4  S.  W.  521;   People  v.  E.  Remington  &  Sons,  121  N.  Y.  333,  24  N.  E.  793. 


Ch.  11]  PARTITION.  259 

CHAPTER   XI. 

EQUITABLE  REMEDIES  (Continued)— PARTITION  AND  BOUNDARIES. 

172.  Partition. 

173.  Who  Entitled  to  Partition. 

174.  What  is  Subject  to  Partition. 

175.  Settlement  of  Boundaries. 

PARTITION. 

172.  Partition  is  the  segregation  of  property  owned  in 
undivided  shares,  so  as  to  vest  in  each  co-owner  exclusive 
title  to  a  specific  portion  in  lieu  of  his  undivided  interest 
in  the  whole. 

Property,  whether  real  or  personal,  owned  in  undivided  shares, 
may,  of  course,  he  partitioned  by  the  voluntary  acts  of  the  owners. 
In  the  case  of  real  estate,  this  is  usually  accomplished  by  a  convey- 
ance or  release,  to  each  cotenant  bjr  the  others,  of  the  portion  which 
he  is  entitled  to  hold  in  severalty.1 

At  common  law,  however,  coparceners  alone  could  compel  parti- 
tion ;  but  later  the  right  was  extended  by  statute  to  joint  tenants  and 
tenants  in  common.2  This  compulsory  common-law  remedy,  which  was 
by  writ  of  partition,  proved  to  be  inadequate  and  incomplete  at  an 
early  day,  because  of  the  various  and  complicated  interests  which  arose 
in  the  ownership  of  real  estate,  and  because  courts  of  law  could  nei- 
ther compel  discovery  as  to  titles,  nor  effectuate  the  partition  in  fact 
by  compelling  mutual  conveyances.3  That  this  state  of  the  law  must 
have  led  to  serious  inconvenience  is  apparent  when  it  is  remembered 
that  each  coparcener,  joint  tenant,  or  tenant  in  common  has  a  right 

i  Freem.  Coten.  §  406;   Yancey  v.  Radford,  86  Va.  638,  10  S.  E.  972. 

2  An  estate  in  coparcenary  existed  where  land,  on  the  death  of  the  owner 
intestate,  devolved  on  several  persons  as  coheirs.  Under  the  English  law  of 
primogeniture,  the  oldest  son,  if  there  was  one,  became  entitled  to  the  land  on 
his  father's  death,  and  hence  the  estate  of  coparcenary  existed  only  where 
the  deceased  left  surviving  him  daughters,  and  no  sons. 

3  Snell,  Eq.  p.  705. 


260  EQUITABLE    REMEDIES.  [Ch.    11 

to  enter  od  every  part  of  the  land;  and,  except  in  the  case  of  an 
actual  expulsion,  there  is  no  remedy  of  any  value  short  of  partition. 
In  the  ease  of  an  undivided  ownership  of  chattels  personal,  the  legal 
results  were  even  more  inconvenient.  Thus,  Littleton  says:  "If  two 
be  possessed  of  chattels  personalis  in  common  by  divers  titles,  as 
of  an  horse,  an  oxe,  or  a  cowe,  &c,  if  the  one  takes  the  whole  to  him- 
selfe  out  of  the  possession  of  the  other,  the  other  hath  no  remedie  but 
to  take  this  from  him  who  hath  done  to  him  the  wrong,  to  occupie  in 
common,  &c,  when  he  can  see  his  time."4 

Equity,  therefore,  began  to  exercise  jurisdiction  in  cases  of  par- 
tition during  the  reign  of  Queen  Elizabeth,  and  its  procedure  proved 
so  effective  that  the  common-law  writ  became  rather  a  matter  of  an- 
tiquarian interest  than  of  practical  importance.  It  was  finally  abol- 
ished in  England  by  legislation  in  1833,  and  the  equity  jurisdiction 
thus  became  exclusive.5 

The  subject  of  partition,  both  in  England  and  in  this  country,  is 
now  regulated  by  statutes,  which  are  generally  declaratory  of  the 
legal  and  equitable  rights  that  previously  obtained.6  These  statutes, 
of  course,  do  not  oust  the  jurisdiction  of  equity,  unless  they  contain 
words  of  prohibition.7 

SAME— WHO    ENTITLED    TO   PARTITION. 

173.  Partition  is  a  matter  of  right,  and  may  be  compelled 
by  any  co-owner  entitled  to  the  possession. 

A  suit  for  partition  may  be  maintained  by  any  cotenant,  whether 
seised  in  fee  8  or  for  life,0  and  apparently  even  when  the  co-owners 

*  Co.  Litt.  §  323.  The  position  of  tenants  in  common  of  chattels  when  at 
odds  with  each  other  is  forcibly  illustrated  in  the  following  story:  Two  men 
are  tenants  in  common  of  an  elephant,  and  one  declines  either  to  pay  anything 
to  the  other  in  the  shape  of  profits  of  exhibition,  or  to  buy  his  co-owner's  share, 
and  is  at  last  brought  to  reason  only  by  the  threat  of  the  injured  party  to 
shoot  his  undivided  moiety.     Haynes,  Eq.  p.  99. 

eHaynes,  Eq.  pp.  100-102. 

«  See  statutes  of  different  states;   Freem.  Coten.  §  42S. 

7  Whitten  v.  Whitten,  3G  N.  H.  332;  Wright  v.  Marsh,  2  G.  Greene  (Iowa) 
104;   Wilkinson  v.  Stuart,  74  Ala.  203;    Labadie  v.  Hewitt,  85  111.  341. 

s  Lord  Brook  v.  Lord  Hertford.  2  P.  Wins.  518. 

»Gaskell  v.  Gaskell,  6  Sim.  643;  Shaw  v.  Beers,  84  Ind.  528;  Hawkins  v. 
McDougal,  125  Ind.  597,  25  N.  E.  807. 


Cll.    11]  PARTITION.  261 

are  entitled  only  for  a  term  of  years,10  provided  only  they  are  in 
possession,  actual  or  constructive.11  When  the  action  is  brought 
by  tenants  for  life,  the  decree  of  partition  will  not  bind  the  rever- 
sioners or  remainder-men  actually  in  existence,  unless  they  have 
been  joined  as  parties;12  but,  where  there  are  remainder-men  who 
may  come  in  esse  and  be  entitled,  they  will  be  bound  by  a  decree  made 
against  the  tenant  for  life.13 

A  bill  for  partition  is  not  maintainable  by  a  cotenant  entitled  only 
in  remainder  or  reversion,  for  it  is  unreasonable  that  a  remainder- 
man or  reversioner  should  disturb  the  existing  state  of  things  during 
the  possession  of  the  tenant  for  life  or  other  prior  tenant14  In  some 
of  the  states,  however,  this  rale  is  abrogated  by  statute.18 

In  the  common-law  action  of  partition,  plaintiff  was  compelled  to 
prove,  not  only  his  own  title,  but  also  that  of  defendant.  In  equity, 
however,  plaintiff  was  entitled  to  discovery  as  to  defendant's  title.18 
Of  course,  the  title  of  plaintiff  to  an  interest  in  the  property  of  which 
he  seeks  partition  must  be  shown.17  If  it  is  disputed  plaintiff  is  re- 
quired to  establish  it  at  law  before  equity  will  decree  partition.18 
Assignment  of  Dower. 

On  the  same  principle  as  in  cases  of  partition,  equity  assumed  juris- 
diction to  assign  dower  to  a  widow  in  lands  of  which  her  husband 

10  Baring  v.  Nash,  1  Ves.  &  B   551;   Mnssey  v.  Sanborn,  15  Mass.  155. 

"Packard  v.  Packard,  16  Pick.  191,  194;  Savage  v.  Savage,  19  Or.  112,  23 
Pac.  890;    Sullivan  v.  Sullivan,  66  N.  Y.  37. 

12  Freem.  Coten.  §  463.  See,  also,  Black  v.  Washington,  65  Miss.  60,  3  South. 
140;    Savage  v.  Savage,  19  Or.  112,  23  Pac.  890. 

is  Thomas  v.  Gyles,  2  Vera.  233;  Brevoort  v.  Brevoort,  70  N.  Y.  136;  Baylor 
v.  Dejarnette,  13  Grat.  152. 

i*  Evans  v.  Bagshaw,  L.  R.  S  Eq.  469,  5  Ch.  App.  340;  Wilkinson  v.  Stuart, 
74  Ala.  198;  Nichols  v.  Nichols,  28  Vt.  228. 

is  Code  Civ.  Proc.  N.  Y.  §  1533. 

is  3  Pom.  Eq.  Jur.  §  1388. 

17  Cartwright  v.  Pultney,  2  Atk.  380;  Jope  v.  Morshead,  6  Beav.  213;  Agar 
v.  Fairfax,  2  White  &  T.  Lead.  Cas.  Eq.  865,  905;  Wilkinson  v.  Stuart,  74 
Ala.  203;  Brendel  v.  Klopp,  69  Md.  1,  13  Atl.  589;  Criscoe  v.  Hnmbrick,  47 
Ark.  235,  1  S.  W.  150. 

is  Waite  v.  Bingley,  21  Ch.  Div.  674,  681;  Fenton  v.  Mackinac  Circuit  Judge, 
76  Mich.  405,  43  N.  W.  437;  Nash  v.  Simpson,  78  Me.  142,  3  Atl.  53;  Seymour 
v.  Ricketts,  21  Neb.  240,  31  N.  W.  781;  Carrigan  v.  Evans,  31  S.  C.  262,  9 
S.  E.  852;   Rich  v.  Bray,  37  Fed.  273. 


2G2  EQUITABLE    REMEDIES.  [Ch.    11 

had  been  seised  in  fee  during  coverture,  though  dower  was  originally 
a  mere  legal  demand.10  In  most  of  the  states,  the  procedure  as  to 
the  assignment  of  dower  is  now  regulated  by  statutes,  and  in  many 
nf  i  hern  the  equitable  jurisdiction  is  abrogated.20 


SAME— WHAT    IS    SUBJECT    TO   PARTITION. 

174.  The  power  of  equity  to  decree  partition  extends  to 
all  property  -within  the  jurisdiction,  -whether  real  or  per- 
sonal. 

Equity  has  power  to  decree  partition  of  any  property  that  can  be 
divided.21  The  inconvenience  or  difficulty  in  making  a  partition 
is  no  objection  to  a  decree.22  This  principle  sometimes  led  to  absurd 
results;  for  the  court  of  chancery,  in  olden  times,  could  not  order  a 
sale  of  the  premises  and  a  division  of  the  proceeds  without  the  con- 
sent of  the  cotenants.23  Thus,  in  Turner  v.  Morgan,24  there  was  a 
decree  for  the  partition  of  a  single  house.  The  whole  stack  of  chim- 
neys, all  the  fire  places,  the  only  staircase,  and  all  the  conveniences  in 
the  yard  were  awarded  to  one  of  the  parties,  and  the  balance  of  the 
house  to  the  other.  Now,  by  statutes,  both  in  this  country  and  in 
England,  courts  may,  in  the  exercise  of  a  sound  discretion,  order  a 
sale  of  the  premises  and  a  division  of  the  proceeds.25  In  cases  where 
no  sale  is  ordered,  the  property  is,  of  course,  divided  among  the 

i»  Curtis  v.  Curtis,  2  Brown,  Ch.  620,  631,  632;  Mundy  v.  Mundy,  2  Ves. 
Jr.  122;  McMahan  v.  Kimball,  3  Blackf.  (Ind.)  1;  Swaine  v.  Perine,  5  Johns. 
Ch.  482. 

20  Scrib.  Dower  (2d  Ed.)  p.  414.  Equity  jurisdiction  is  abrogated  in  Ar- 
kansas, Connecticut,  Delaware,  Florida,  Georgia,  Maine,  Massachusetts,  Mich- 
igan, Minnesota,  New  Hampshire,  Oregon,  South  Carolina,  and  Wisconsin. 

2i  Moore  v.  Darby  (Del.  Ch.)  18  Atl.  768. 

22  Warner  v.  Baynes,  Amb.  5S9;  Hanson  v.  Willard,  12  Me.  147;  Steedman 
v.  Weeks,  2  Strob.  Eq.  145;  Cooper  v.  Cedar  Rapids  Water-Power  Co.,  42 
Iowa,  398. 

23Griffies  v.  Griffies,  11  Wkly.  Rep.  943;  Codman  v.  Tinkham.  15  Pick.  3G4; 
Lyon  v.  Powell,  78  Ala.  351. 

24  8  Ves.  143. 

25  Agar  v.  Fairfax,  2  White  &  T.  Lead.  Cas.  Eq.  915,  and  notes;  Brooks  v. 
Davey,  109  N.  Y.  495,  17  N.  E.  412;  Corrothers  v.  Jolliffe,  32  W.  Va.  502,  9 
S.  E.  SS9;   Brendel  v.  Klopp,  69  Md.  1,  13  Atl.  5S9. 


Ch.   11]  SETTLEMENT    OF    BOUNDARIES.  263 

tenants  in  common  as  nearly  equally  as  may  be.  If,  however,  it  is 
impracticable  to  make  a  fair  and  equitable  division,  the  tenant  to 
whom  the  more  valuable  share  is  allotted  must  make  compensation 
to  equalize  the  others.  This  compensation  is  called  the  "owelty  of 
partition,"26  and  may  consist  either  in  the  payment  of  a  sum  of 
money,27  or  a  servitude  or  easement  imposed  for  the  benefit  of  the 
less  valuable  share.28 

Freehold  estates  were  always  subject  to  partition  in  equity,  and 
leaseholds  were  made  so  by  statute.29  Even  incorporeal  heredita- 
ments may  be  partitioned  between  the  co-owners;  for  example,  a 
ferry  franchise,30  or  the  right  to  a  mineral  spring.31  The  only  limita- 
tion on  the  power  of  the  court  in  this  respect  is  that  the  property 
must  be  within  its  territorial  jurisdiction.82 

We  have  already  seen  that  owners  of  personal  property  are  entirely 
without  a  legal  remedy  as  between  themselves.33  Courts  of  equity, 
therefore,  have  exclusive  jurisdiction  of  suits  for  partition  of  this 
species  of  property; 84  and  it  is  immaterial  that  plaintiff's  title  is 
disputed,35  or  that  he  is  not  in  possession.88 

SETTLEMENT    OF   BOUNDARIES. 

175.  The  jurisdiction  of  equity  as  to  the  settlement  of 
boundaries  is  limited  to  those  cases:37 

(a)  Where  there  is  some  peculiar  equity  superinduced 
by  the  acts  of  the  parties; 

2«  Clarendon  v.  Hornby,  1  P.  Wms.  446. 

27  Field  v.  Leiter,  117  HI.  341,  7  N.  E.  279;  Cox  v.  McMullin,  14  Grat.  (Va.) 
82;  Smith  v.  Smith,  10  Paige,  477;  Cheatham  v.  Crews,  SS  N.  C.  38. 

28  Cheswell  v.  Chapman,  38  N.  H.  17. 

29  32  Hen.  VIII.  c.  32,  §  1. 

so  Rohn  v.  Harris,  130  HI.  525,  22  N.  E.  587. 

«i  Foreman  v.  Hough,  98  N.  C.  386,  3  S.  E.  912. 

82  See  ante,  29. 

as  See  ante,  260. 

s4Freem.  Coten.  §  426;  Godfrey  v.  White,  60  Mich.  443,  27  N.  W.  503; 
Smith  v.  Smith,  4  Rand.  (Va.)  102;  Swain  v.  Knapp,  32  Minn.  431,  21  N.  W. 
414;   Spaulding  v.  Warner,  59  Vt.  646,  11  Atl.  186. 

as  Godfrey  v.  White,  60  Mich.  443,  27  N.  W.  593;  Weeks  v.  Weeks,  5  lied. 
Eq.  Ill;   Smith  v.  Dunn,  27  Ala.  316. 

36  Spaulding  v.  Warner,  59  Vt.  646,  11  Atl.  186. 

st  Wake  v.  Conyers,  1  Eden,  331,  2  White  &  T.  Lead.  Cas.  Eq.  850. 


'JG1  EQUITABLE    REMEDIES.  [Ch.    11 

(b)  Where  there  is  a  bona  fide  dispute  as  to  the  own- 

ership of  the  soil;  and 

(c)  Where  some  portion  of  the  premises  is  in  the  de- 

fendant's possession. 

The  jurisdiction  of  equity  to  settle  disputed  boundaries  is  limited 
by  the  rule  that  equity  has  no  jurisdiction  where  there  is  an  ade- 
quate remedy  at  law.38  The  plaintiff  must  show  clearly  that,  without 
the  assistance  of  the  court,  the  boundaries  could  not  be  found ; 30  or, 
failing  the  assistance  of  equity,  that  a  multiplicity  of  actions  would 
be  occasioned.40  Defendant's  fraud  in  obliterating  and  confusing 
the  boundaries  will  confer  jurisdiction  on  the  court.41  As  a  rule, 
the  location  of  disputed  boundaries  may  be  settled  in  the  legal  ac- 
tion of  ejectment,  and  statutes  in  many  of  the  states  have  prescribed 
a  special  procedure.  The  equity  jurisdiction  on  this  branch  seems  « 
to  be  nearly  obsolete  in  the  United  States. 

88  Perry  v.  Pratt,  31  Conn.  433. 
39  Miller  v.  Warmington,  1  Jac.  &  W.  491. 

*o  Bouverie  v.  Prent'ce,  1  Brown,  Ch.  200;  Perry  v.  Pratt,  31  Conn.  433. 
<i  Bute  v.  Glamorganshire  Canal  Co.,  1  Phil.  Ch.  681;   Merriman  v.  Russell, 
2  Jones,  Eq.  (N.  C.)  470. 


Ch.    12]  DEFINITION    AND    CONTRACTS    ENFORCEABLE.  265 

CHAPTER   XII. 

EQUITABLE  REMEDIES  (Continued)— SPECIFIC  PERFORMANCE. 

176.  Definition  and  Contracts  Enforceable. 

177.  Inadequacy  of  Damages. 

178.  Contracts  Relating  to  Personal  Acts. 

179.  Grounds  for  Refusing  Relief. 

180.  Defenses  Having  Same  Effect  at  Law  and  in  Equity.  i     | 

181.  Defenses  Confined  to  Specific  Performance. 

182.  Defenses  Producing  Different  Result  than  at  Common  Law. 

183.  Statute  of  Frauds  as  a  Defense. 

184.  Specific  Performance  with  a  Variation. 

DEFINITION    AND    CONTRACTS    ENFORCEABLE. 

176.  Specific  performance  may  be  defined  to  be  a  judicial 
order  that  a  legal  contract  be  actually  carried  into  effect, 
made  in  cases  'where  damages  would  not  give  adequate 
compensation. 1 

It  has  heretofore  been  pointed  out  that  the  sole  redress  which  the 
common  law  affords  for  breach  of  contract  to  the  disappointed  party 
is  damages.  Consequently,  as  far  as  the  common-law  remedy  is  con- 
cerned, it  is  open  to  a  contracting  party  either  to  perform  the  con- 
tract or  to  pay  damages,  and  to  choose  between  these  two  courses 
at  his  pleasure.  Equity,  on  the  other  hand,  has  regarded  such  a 
remedy  as  in  many  cases  inadequate;  and,  deeming  a  party  bound 
in  conscience  to  do  exactly  what  he  has  agreed  to  do,  has  exercised 
its  authority  to  compel  the  specific  performance  of  his  agreement. 
The  first  question  to  be  determined,  therefore,  is  when  damages  do, 
and  when  they  do  not,  afford  an  adequate  remedy. 

SAME— INADEQUACY    OF   DAMAGES. 

177.  A  breach  of  contract  cannot  be  adequately  recom- 
pensed by  damages  -where  the  thing  contracted  for  is  spe- 

i  Underh.  Eq.  p.  19G. 


266  EQUITABLE    REMEDIES.  [Ch.    12 

cific,  and  its  exact  counterpart  cannot  be  purchased  in  the 
open  market.2 

One  who  has  contracted  to  purchase  a  particular  tract  of  land 
cannot  get  its  exact  counterpart  anywhere,  with  all  its  surroundings 
and  conveniences.  It  is  a  unique  thing,  not  capable  of  being  dupli- 
cated. The  rule,  therefore,  is  that  where  a  contract  in  writing  re- 
specting real  property  is  entered  into  between  competent  parties, 
and  is  in  its  nature  and  circumstances  unobjectionable,  it  is  as  much 
of  course  for  a  court  of  equity  to  decree  specific  performance  as  it 
is  for  a  court  of  common  law  to  give  damages  for  the  breach  of  such 
a  contract.3 

A  contract  for  the  sale  and  delivery  of  chattels,  possessing  an  easily 
ascertainable  market  value,  such  as  articles  of  merchandise,  corn,  or 
wheat,  is  very  different  from  a  contract  for  the  sale  of  lands,  since 
damages  awarded  for  breach  of  such  a  contract  will  enable  plaintiff 
to  procure  other  articles  as  good  in  all  respects  as  those  which  were 
contracted  for.  The  legal  remedy,  therefore,  being  adequate,  there 
is  generally  no  ground  for  the  exceptional  and  discretionary  interfer- 
ence of  equity  in  contracts  respecting  personal  chattels.4 

Special  circumstances  may,  however,  induce  the  court  to  decree 
specific  performance  of  such  contracts.  When  chattels  consist  of 
works  of  art,  or  rare  articles  of  virtu,  or  heirlooms,  or  the  like, — things 
unique  in  themselves,  and  practically  incapable  of  being  replaced. — 
a  contract  in  relation  to  them  will  be  specifically  enforced.5     On  the 

2  Underh.  Eq.  p.  196. 

3  Hnll  v.  Warren,  9  Vos.  605,  008;  Page  v.  Martin.  46  N.  J.  Eq.  5S5.  599, 
20  Atl.  46;  Jackens  v.  Nicholson,  70  Ga.  200;  Popplein  v.  Foley,  61  Md.  381; 
Gonaway  v.  Sweeney,  24  W.  Va.  643,  649;  Ensign  v.  Kellog,  4  Pick.  (Mas>.) 
5;  Throckmorton  v.  Davidson,  68  Iowa,  643,  27  N.  W.  794;  McClure  v.  Otr'ch, 
118  HI.  320,  8  N.  E.  784;   Bogan  v.  Daughdrill,  51  Ala.  312. 

*  Cuddeo  v.  Rutter,  5  Vin.  Abr.  53S,  pi.  21,  1  White  &  T.  Lead.  Cas.  Eq. 
1063;  Johnson  v.  Brooks,  93  N.  Y.  337,  343;  Dilburn  v.  Younghlood,  85  Ala. 
449,  5  South.  175;  Jones  v.  Newhall,  115  Mass.  244;  Kimball  v.  Morton,  5 
N.  J.  Eq.  26;  Foil's  Appeal,  91  Pa.  St.  434. 

5  Thus,  a  unique  horn,  known  as  the  "Pusey  Horn,"  was  specifically  or- 
dered to  be  delivered  up.  Pusey  v.  Pusey,  1  Vern.  273,  1  White  &  T.  Lead. 
Cas.  Eq.  1109.  And  so  with  a  curious  Greek  altar  piece.  Duke  of  Somerset 
v.  Cookson,  3  P.  Wins.  3S9,  1  White  &  T.  Lead.  Cas.  Eq.  1110.     See,  also, 


Ch.    12]  DEFINITION    AND    CONTRACTS    ENFORCEABLE.  207 

same  principle,  the  court  will  order  the  delivery  up  of  specific  deeds 
and  writings  to  the  persons  legally  entitled  thereto.6 

In  England,  a  contract  for  the  sale  of  shares  of  corporate  stock 
will  he  specifically  enforced,  because  such  shares  are  limited  in  num- 
ber, and  not  always  obtainable.7  With  us,  such  contracts  will  not 
be  specifically  enforced,  because  corporate  stock  is  ordinarily  purchas- 
able in  the  market,  and  compensation  in  damages  affords  an  adequate 
remedy.8  And,  for  similar  reasons,  contracts  for  the  sale  of  govern- 
mental securities  or  bonds  will  not  be  specifically  enforced.8 

Agreements  relating  to  patents  for  inventions  afford,  perhaps,  the 
best  illustration  of  equitable  interference  in  cases  relating  to  per- 
sonalty. Such  agreements  will  be  specifically  enforced,  almost  as 
much  as  a  matter  of  course  as  contracts  concerning  real  property.10 


SAMF— CONTRACTS   RELATING   TO   PERSONAL   ACTS. 

178.  A  contract   relating  to  personal  acts  ■will  not,  as  a 
rule,  be  specifically  enforced. 

Contracts  of  hiring  and  service  are  of  a  personal  and  confidential 
character,  and  they  will  not  be  specifically  enforced,  for  an  enforced 

Fells  v.  Read,  3  Ves.  70;  Lloyd  v.  Loaring,  6  Ves.  773;  Williams  v.  Howard. 
3  Murph.  (N.  C.)  74;  McGowin  v.  Remington,  12  Pa.  St.  56. 

« Brown  v.  Brown,  1  Dickens,  62;  Gibson  v.  Ingo,  6  Hare,  112;  Baum's 
Appeal,  113  Pa.  St.  58,  4  Atl.  461;  Cowles  v.  Whitman,  10  Conn.  121;  Patti- 
son  v.  Skillman,  34  N.  J.  Eq.  344. 

7  Duncuft  v.  Albrecht,  12  Sim.  189;  Poole  v.  Middleton,  29  Beav.  646;  Shaw 
v.  Fisher,  2  De  Gex  &  S.  11. 

s  Eckstein  v.  Downing,  64  N.  H.  24S;  Avery  v.  Ryan,  74  Wis.  591,  43  N. 
W.  317;  Noyes  v.  Marsh,  123  Mass.  2S6.  Rule  is  otherwise  where  stock  can- 
not be  obtained  in  the  market.  Johnson  v.  Brooks,  93  N.  Y.  337;  Frue  v. 
Houghton,  6  Colo.  318. 

»Cuddee  v.  Rutter,  5  Vin.  Abr.  538,  pi.  21,  1  White  &  T.  Lead.  Cas.  Eq. 
1063;  Ross  v.  Union  Pac.  Ry.  Co.,  Woolw.  26,  Fed.  Cas.  No.  12,080. 

io  Whitney  v.  Burr,  115  111.  289,  3  N.  E.  434;  Hapgood  v.  Rosenstock,  23 
Fed.  86;  Adams  v.  Messinger,  147  Mass.  185,  17  N.  E.  491;  Hull  v.  Pitrat, 
45  Fed.  94;  Reese's  Appeal,  122  Pa.  St.  392,  15  Atl.  807. 


268  EQUITABLE    HEME  DIES.  [Ch.    12 

performance  would  probably  be  worse  than  a  nonperformance.11 
The  same  remarks  apply  to  the  contract  of  agency.12  For  a  somewhat 
similar  reason,  an  agreement  to  sell  the  good  will  of  a  business,  de- 
pending on  personal  considerations,  will  not  be  enforced; 13  but,  where 
the  good  will  is  entirely  or  mainly  attached  to  the  premises,  a  con- 
tract for  the  sale  of  the  good  will  and  premises  is  enforceable.14 

Contracts  to  perform  certain  acts  relating  to  land,  such  as  con- 
tracts  to  build  and  repair,  are  of  a  somewhat  special  nature;  but,  as 
a  general  rule,  they  will  not  be  specifically  enforced,15  because  the 
legal  remedy  is  usually  sufficient,  and  it  would  be  almost  impossible 
for  the  court  to  carry  out  its  decree  if  made.10  Nevertheless,  the 
court  has  jurisdiction  to  decree  the  performance  of  certain  works 
where  damages  would  not  be  an  adequate  remedy.  Thus,  a  contract 
to  build  a  railway  crossing  will  be  specifically  enforced.17  Again, 
where  there  have  been  acts  amounting  to  part  performance  of  the 
contract,  the  court  will  decree  specific  performance  which  it  might 
otherwise  have  refused.18  The  general  tendency  of  modern  decisions 
is  towards  granting  the  relief  thus  sought,  if  possible.19 

Some  of  the  English  cases  hold  that  specific  performance  will  not 
be  granted  of  a  contract  which  imposes  on  the  contractor  the  per- 
formance of  continuous  duties  extending  over  a  considerable  period 

11  Johnson  v.  Shrewsbury  &  B.  R.  Co.,  3  De  Gex,  M.  &  G.  914;  Iron  Age  Pub. 
Co.  v.  W.  U.  Tel.  Co.,  83  Ala.  498,  3  Sov.th.  449;  William  Rogers  Manuf'g  Co. 
v.  Rogers,  58  Conn.  356.  20  Atl  4G7;  Lindsay  v.  Gloss,  119  Ind.  301,  21  N. 
E.  897;  Wakeham  v.  Barker,  82  Cal.  46,  22  Pac.  1131;  Campbell  v.  Rust,  85 
Va.  653,  8  S.  E.  664. 

12  Chinnock  v.  Sainsbury,  30  Law  J.  Ch.  409. 
is  May  v.  Thomson,  20  Ch.  Div.  705. 

i*  Cruttwell  v.  Lye,  17  Ves.  335. 

is  Errington  v.  Aynesly,  2  Brown,  Ch.  341;  Beck  v.  Allison.  56  N.  Y.  366; 
Oregonian  Ry.  Co.  v.  Oregon  Ry.  &  Nav.  Co.,  37  Fed.  733;  Ross  v.  Union 
Pac.  Ry.  Co.,  Woolw.  26,  Fed.  Cas.  No.  12,080. 

is  Middleton  v.  Greenwood,  2  De  Gex,  J.  &  S.  142. 

it  Post  v.  West  Shore  R.  Co.,  123  N.  Y.  581,  26  N.  E.  7.  See,  also,  Stuyvesant 
v.  Mayor,  11  Paige  (N.  Y.)  414;  Gregory  v.  Ingwersen,  32  N.  J.  Eq.  199;  Storer 
v.  G.  W.  R.  Co.,  2  Younge  &  C.  Ch.  48. 

is  Price  v.  Corp.  of  Penzance,  4  Hare,  506,  509;  Ross  v.  Union  Pac.  Ry. 
Co.,  Woolw.  40,  Fed.  Cas.  No.  12,080;  Birchett  v.  Boiling,  5  Munf.  (Va.)  442. 

i»  Wilson  v.  Furness  R.  Co.,  L.  R.  9  Eq.  28,  33. 


Ch.    12]  DEFINITION    AND    CONTRACTS    ENFORCEABLE.  269 

of  time,  on  the  ground  that  the  court  cannot  undertake  to  see  to 
such  performance; 20  but  this  proposition  has  not  been  regarded 
as  of  controlling  importance  in  several  recent  American  decisions.21 

Other  Instances. 

A  contract  to  enter  into  a  partnership  to  continue  for  an  indefinite 
period  will  not  be  specifically  enforced,  since  such  a  partnership 
is  terminable  at  will.22  If,  however,  the  partnership  is  to  continue 
for  a  fixed  term  of  years,  and  there  have  been  acts  of  part  perform- 
ance, the  court  will  exercise  its  powers;23  but,  to  warrant  it,  the 
circumstances  must  be  strong.24 

Contracts  to  refer  to  arbitration  will  not  be  specifically  enforced.25 
The  award  of  the  arbitrators,  however,  is  treated  as  a  contract  be- 
tween the  parties,  and  will  be  enforced  where  a  contract  would  be 
enforced,  but  not  otherwise.26    An  award  to  do  anything  in  specie,. 

20  Blackett  v.  Bates,  1  Ch.  App.  117;  Powell  D.  S.  C.  Co.  v.  Taff  Vale  Ry. 
Co.,  9  Ch.  App.  331. 

2i  Joy  v.  St.  Louis,  138  U.  S.  11,  47,  11  Sup.  Ct.  243  (contract  prescribing 
terms  by  which  one  railroad  company  may  run  its  trains  over  track  of  an- 
other company  specifically  enforced);  Cornwall  &  L.  R.  Co.'s  Appeal,  125 
Pa.  St.  232,  17  Atl.  427  (contract  requiring  all  trains  to  stop  within  200  fret 
of  a  crossing  specifically  enforced);  South  &  N.  A.  R.  Co.  v.  Highland  Ave. 
&  B.  R.  Co.,  98  Ala.  400,  13  South.  682  (contract  for  construction,  repair,  and 
use  of  railroad  track  enforced);  Union  Pac.  Ry.  Co.  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  2  C.  C.  A.  174,  51  Fed.  309;  Louisville  &  N.  R.  Co.  v.  Mississippi  & 
T.  R.  Co.,  92  Tenn.  681,  22  S.  W.  920.  It  should  be  noted,  however,  that  in 
all  these  cases  the  courts  were  controlled  in  some  measure,  at  least,  by  the 
interest  of  the  public  in  questions  of  transportation. 

22  Scott  v.  Rayment,  L.  R.  7  Eq.  112;  Buck  v.  Smith,  29  Mich.  166;  Meason 
v.  Kaine,  63  Pa.  St.  335. 

23  Anon.,  2  Ves.  Sr.  629;   England  v.  Curling,  8  Beav.  129. 

24  Downs  v.  Collins,  6  Hare,  418,  437. 

25  Street  v.  Rigby,  6  Ves.  815;  Cooke  v.  Cooke,  L.  R.  4  Eq.  77;  Half  hide 
v.  Fenning,  2  Brown,  Ch.  337;  Noyes  v.  Marsh,  123  Mass.  2S6;  Smith  v. 
Boston,  C.  &  M.  R.  Co.,  36  N.  H.  487;  Hopkins  v.  Gilman,  22  Wis.  476.  In 
England  such  contracts  are  now  enforceable  by  statute.  17  &  18  Vict.  c.  125, 
§  11;  Seligmann  v.  Le  Boutillier,  L.  R.  1  C.  P.  6S1;  Willesford  v.  Watson, 
L.  R.  14  Eq.  572. 

28  Blackett  v.  Bates,  1  Ch.  App.  117;  Caldwell  v.  Dickinson,  13  Gray,  365; 
Story  v.  Norwich  &  W.  R.  Co.,  24  Conn.  94;  McNeil  v.  Magee,  5  Mason,  244, 
Fed.  Cas.  No.  8,915;  Kirksey  v.  Fike,  27  Ala.  383. 


270  EQUITABLE    REMEDIES.  [Ch.    12 

as  to  convey  an  estate  or  assign  securities,  will  therefore  be  en- 
forced,27 but  not  an  award  to  pay  money.28 

A  court  of  equity  will  not  specifically  enforce  a  contract  to  lend 
or  to  borrow  or  to  pay  money,29  but  it  will  decree  specific  perform- 
ance of  an  agreement  to  give  security  in  consideration  of  money 
due.30 

Contracts  to  insure  have  been  enforced  even  after  loss.81 


GROUNDS    FOR   REFUSING    RELIEF. 

179.  For  the  purpose  of  conveniently  dealing  -with  the 
defenses  open  to  a  defendant  in  an  action  for  specific  per- 
formance, it  may  be  noticed  that  there  are: 

(a)  Some  -which,  if  substituted  in  a  common-law  action 

for  damages,  would  produce  a  similar  result. 

(b)  Others  -which  are  confined  to  specific  performance 

actions. 

(c)  Others  -which,  although  recurring  in  common-law 

actions  for  damages,  produce  in  specific  perform- 
ance actions  either  a  dissimilar,  or,  at  least,  not 
a  precisely  similar,  result. 

27  Norton  v.  Mascall,  2  Vera.  24,  and  cases  cited  in  preceding  note. 

as  Hall  v.  Hardy,  3  P.  Wms.  190;  Howe  v.  Nickerson,  14  Allen  (Mass.)  400; 
Txirpin  v.  Banton,  Hardin  (Ky.)  320. 

29  Sichel  v.  Mosenthal,  30  Beav.  371;  Rogers  v.  Challis,  27  Beav.  175; 
Crampton  v.  Varna  R.  Co.,  7  Ch.  App.  562;  Bradford,  E.  &  C.  R.  Co.  v.  New 
York.  L.  E.  &  W.  R.  Co.,  123  N.  Y.  327,  25  N.  E.  499;  Pierce  v.  Plumb,  74  HI. 
326,  330,  331. 

so  Ash  ton  v.  Corrigan,  L.  R.  13  Eq.  76;  Triebert  v.  Burgess,  11  Md.  452; 
Rothholz  v.  Schwartz,  46  N.  J.  Eq.  477,  19  Atl.  312;  Taylor  v.  Eckersley,  2 
Ch.  Div.  302,  5  Ch.  Div.  740.  Contra,  City  Fire  Ins.  Co.  v.  Olmsted,  33  Conn. 
476;   Johnson  v.  Hoover,  72  Ind.  395. 

si  Haden  v.  Farmers'  &  M.  Fire  Ass'n,  80  Va.  683;  Baile  v.  St.  Joseph  Fire 
&  M.  Ins.  Co.,  73  Mo.  371;  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  390; 
Covenant  Mut  Ben.  Ass'n  v.  Sears.  114  111.  108,  29  N.  E.  480. 


Ch.  12]  GROUNDS    FOR    REFUSING    RELIEF.  271 

SAME— DEFENSES    HAVING    SAME    EFFECT    AT    LAW    AND 

IN   EQUITY. 

180.  Specific  performance  will  not  be  decreed  of  a  con- 
tract void  at  law  because  of: 

(a)  Incapacity  of  the  parties. 

(b)  Nonconclusion. 

(c)  Illegality. 

This  class  of  defenses  will  be  noticed  but  briefly,  since  it  forms 
part  of  the  general  law  of  contracts. 
Incapacity  of  Parlies. 

The  incapacity  of  a  party  to  yield  assent  to  a  contract,  such  as 
lunacy,  renders  the  contract  unenforceable  in  equity,  as  well  as  at 
law.  As  regards  coverture,  the  contracts  of  married  women  re- 
specting their  separate  property  are  enforceable  against  them  and 
in  their  favor.  Infancy,  as  we  shall  hereafter  see,  has  a  somewhat 
different  effect  in  equity  than  at  law. 
Contract  must  be  Concluded. 

So  long  as  the  parties  are  only  in  negotiation,  there  is  no  con- 
tract which  can  be  specifically  enforced.32  It  is  often  very  difficult, 
however,  to  distinguish  mere  negotiations  from  contract.  The  law 
on  this  subject  is  thus  summarized  by  Mr.  Fry : 33  The  burden  of 
proving  that  there  is  a  concluded  contract  rests  on  plaintiff.  A 
binding  contract  may  be  constituted  by  the  proposal  of  one  party 
and  the  acceptance  of  the  other;  but  the  proposal  has  no  validity 
without  the  acceptance.  A  memorandum  of  agreement  which  may 
be  retracted  until  accepted  differs  essentially  from  a  memorandum 
of  agreement  which,  whenever  signed,  is  binding  on  the  party  who 
signs  it.  The  acceptance  of  a  proposal  must  be  plain,  unequivocal, 
unconditional,  without  variance  between  it  and  the  proposal,  and  it 
must  be  completed  without  unreasonable  delay.     With  respect  to 

32  Duff  v.  Hopkins,  33  Fed.  599;  Mayer  v.  McCreery,  119  N.  Y.  434,  23  N. 
E.  1045;  Brown  v.  Finney,  53  Pa.  St.  373:  Wristen  v.  Bowles,  82  Cal.  84,  22 
Pac.  1136;  Domestic  Tel.  Co.  v.  Metropolitan  Tel.  Co.,  39  N.  J.  Eq.  160,  165; 
Wardell  v.  Williams,  62  Mich.  50,  28  N.  W.  796. 

33  Fry,  Spec.  Perf.  (3d  Am.  Ed.)  p.  132. 


272  EQUITABLE    REMEDIES.  [Ch.    12 

the  important  question  as  to  whether  a  contract  has  been  concluded 
by  correspondence  the  following  rule  has  been  announced:  Where  a 
complete  contract  can  be  collected  from  a  correspondence  between 
the  parties,  the  court  will  grant  specific  performance,  although  it 
was  agreed  that  the  terms  should  be  embodied  in  a  formal  contract, 
unless  there  was  a  condition  suspending  the  final  assent  until  the 
execution  of  the  formal  contract84 

Illegality. 

The  illegality  of  a  contract,  or  any  part  of  a  contract,  is,  of  course, 
a  bar  to  specific  performance;  but  the  illegality  must  apparently  be 
clearly  made  out85 

SAME— DEFENSES  CONFINED  TO  SPECIFIC  PERFORMANCE. 

181.  The  defenses  peculiar  to  actions  for  specific  perform- 
ance, as  opposed  to  actions  for  damages,  are: 

(a)  Want  of  mutuality  of  obligation. 

(b)  Hardship. 

(c)  Want  of  fairness. 

(d)  Inadequacy  of  consideration. 

The  defenses  peculiar  to  the  action  of  specific  performance,  as  well 
as  those  producing  a  different  result  than  at  common  law,  are 
founded  on  the  two  maxims:  "He  who  seeks  equity  must  do  equity," 
and  "He  who  comes  into  equity  must  come  with  clean  hands."  In 
one  case  it  was  said:  "Courts  not  merely  observe  the  words  of  the 
contract,  but  also  have  respect  to  the  obligations  of  the  golden 
rule;  and,  unless  plaintiff  has  done  as  he  would  be  done  by,  it  is 
useless  for  him  to  come  into  that  forum  where  equity  and  good 
conscience  reign  supreme  over  the  letter  of  the  law."  38 

a*  Rossiter  v.  Miller,  3  App.  Cas.  1124. 

ss  Sprasue  v.  Roonoy,  104  Mo.  349,  16  S.  W.  505;  Kreamer  v.  Earl,  91  Cal. 
112,  27  Pac.  735;  Bajrsott  v.  Sawyer,  25  S.  C.  405;  Piatt  v.  Maples,  19  La. 
Ann.  459.  Contract  void  in  part  will  not  be  enforced.  Hall  v.  Loomis,  63 
Mich.  709,  30  N.  W.  374. 

3«  Rusnton  v.  Thompson,  35  Fed.  635,  per  Brewer,  J. 


Ch.   12]  GROUNDS    FOR    REFUSING    RELIEF,  273 

Want  of  Mutuality. 

Mutuality  of  consensus  is  essential  to  the  validity  of  every  con- 
tract, but  to  recover  damages  there  is  no  necessity  for  mutuality  of 
obligation.  Thus,  an  infant  can  recover  damages  against  a  per- 
son sui  juris  with  whom  he  has  contracted,  although  he  might  himself 
have  pleaded  infancy.  But,  for  specific  performance,  mutuality  of 
obligation  is  essential; 8T  and  in  such  a  case  one  party  to  a  bargain 
is  not  bound  when  he  cannot  enforce  it  against  the  other.38 

Exceptions,  however,  exist  to  the  necessity  of  mutuality.  Thus, 
where  an  owner  of  land,  for  a  valuable  consideration,  gives  another, 
in  writing,  an  option  to  purchase  within  a  specified  time,  the  con- 
tract will  be  enforced  at  the  suit  of  the  party  holding  the  option, 
though  no  obligation  rested  on  him  to  make  the  purchase.39  So,  a 
person  who  has  not  signed  a  contract  required  by  the  statute  of 
frauds  to  be  in  writing  may  enforce  it  against  the  other  who  has 
signed.40 
Want  of  Fairness. 

Only  those  contracts  which  are  fair,  just,  and  reasonable  will  be 
specifically  enforced.41     Thus,  a  contract  by  a  married  woman  to  pur- 

37  Flight  v.  Bolland.  4  Russ.  301;  Marble  Co.  v.  Ripley,  10  Wall.  339,  350; 
Iron  Age  Pub.  Co.  v.  W.  U.  Tel.  Co..  83  Ala.  498,  3  South.  449;  Bourget  v. 
Monroe,  58  Mich.  5G3.  25  N.  W.  514;  Brown  v.  Munger,  42  Minn.  482,  44  N. 
W.  519;  Glass  v.  Rowe,  103  Mo.  513,  15  S.  W.  334;  Butman  v.  Porter,  100 
Mass.  337. 

38  Wylson  v.  Dunn,  34  Ch.  Div.  569,  577;  Alworth  v.  Seymour.  42  Minn. 
526,  44  N.  W.  1030.  The  rule  is  subject  to  the  modification  that,  if  the  quality 
originally  lacking  be  subsequently  supplied,  the  enforcement  of  the  contract 
may  be  made  possible.     Woodruff  v.  Woodruff,  44  N.  J.  Eq.  349,  16  Atl.  4. 

39  Johnston  v.  Trippe,  33  Fed.  530,  536;  Frue  v.  Houghton,  6  Colo.  31S; 
Ross  v.  Parks,  93  Ala.  153,  8  South.  368;  Johnston  v.  Wadsworth  (Or.)  34  Pac 
13;  Watts  v.  Kellar,  5  C.  C.  A.  394,  56  Fed.  1;  Boston  &  M.  R.  Co.  v.  Bartlett, 
3  Cush.  (Mass.)  224.  But,  where  there  is  no  consideration  for  the  option, 
specific  performance  will  not  be  decreed.  Graybill  v.  Braugh,  89  Va.  895, 
17  S.  E.  558. 

40  Miller  v.  Cameron,  45  N.  J.  Eq.  95,  15  Atl.  842;  Clason  v.  Bailey.  14  Johns. 
489;  Ives  v.  Hazard,  4  R.  I.  14;  Rogers  v.  Saunders,  16  Me.  92;  Docter  v. 
Hellberg,  65  Wis.  415,  27  N.  W.  176. 

"Cathcart  v.  Robinson,  5  Pet.  269;  Rust  v.  Conrad.  47  Mich.  449,  11  N. 
W.  265;  McElroy  v.  Maxwell,  101  Mo.  294,  14  S.  W.  1;  Rierd  v.  Beavers,  106 
Ind.  483,  7  N.  E.  326;   Godwin  v.  Collins,  4  Houst.  (Del.)  28. 

EQ.JUR.— 18 


274  EQUITABLE    REMEDIES.  [Ch .    12 

chase  land,  by  the  terms  of  which  she  is  to  secure  payment  of  the  pur- 
chase price  by  a  mortgage,  not  only  on  the  land  purchased,  but  on  her 
olker  separate  real  estate,  is  so  rash  and  improvident  that  a  court 
of  equity  will  not  decree  specific  performance  in  the  vendor's  favor.48 
The  period  for  testing  fairness  is  the  time  the  contract  was  entered 
into.43 

The  court  will  not  exercise  its  extraordinary  power  in  compelling 
specific  performance  where  to  do  so  would  necessitate  a  breach  of 
trust,44  or  would  work  an  injury  to  a  third  person  or  to  the  public 
interests,45  or  would  compel  a  person  to  do  what  be  is  not  lawfully 
competent  to  do, — partly  on  the  ground  of  the  unfairness  and  illegal 
taint  of  such  contract  in  itself,  and  partly  of  the  hardship  to  which  it 
would  expose  the  person  forced  to  execute  it.46 

Hardship. 

If  the  result  of  a  contract  is  to  impose  great  hardship  on  either  of 
the  contracting  parties,  it  will  not  be  specifically  enforced.47  Thus 
specific  performance  will  not  be  decreed  in  favor  of  a  vendor,  where, 
after  the  execution  of  the  contract,  a  portion  of  the  premises  has 
been  swept  away  by  the  sea,48  or  where  improvements  on  the  land 
were  destroyed  by  fire  before  he  was  ready  to  convey.49 

Inadequacy  of  Consideration. 

At  common  law,  as  long  as  there  is  a  consideration,  the  court  does 
not,  as  a  general  rule,  inquire  into  its  adequacy.  But,  as  regards 
specific  performance,  some  of  the  earlier  cases  treated  mere  in- 


«  Friend  v.  Lamb.  152  Pa.  St.  529.  25  Atl.  577. 

«  Wfflard  v.  Tayloe,  8  Wall.  557;  Hale  v.  Wilkinson,  21  Grat.  (Va.)  75. 

4*  Dunn  v.  Flood,  28  Ch.  Div.  586;   Saltmarsh  v.  Beene,  4  Port.  (Ala.)  283. 

45  Thomas  v.  Duering,  IKeen,  729;  Curranv.  HolyokeU.  Water-Power  Co.,  116 
Mass.  90:  Chicago,  B.  &  Q.  R.  Co.  v.  Reno,  113  HI.  39;  Conger  v.  New  York, 
W.  S.  &  B.  R.  Co.,  120  N.  Y.  29,  23  N.  E.  9S3;  Kelly  v.  Central  Pac.  R.  Co.,  74 
Cal.  557,  16  Pac.  386. 

46  Fry,  Spec.  Perf.  (3d  Am.  Ed.)  p.  190. 

47  Wedgwood  v.  Adams,  6  Beav.  600,  8  Beav.  103;  Watson  v.  Marston,  4  De 
Gex,  M.  &  G.  230;  Ramsay  v.  Gheen,  99  N.  C.  215,  6  S.  E.  75;  Miles  v.  Dover 
Furnace  Iron  Co.,  125  N.  Y.  294,  26  N.  E.  261.  See,  however,  Franklin  Tel. 
Co.  v.  Harrison,  145  U.  S.  459.  12  Sup.  Ct.  900. 

48  Huguenin  v.  Courtenay,  21  S.  C.  403. 
48  Smith  v.  Cansler,  83  Ky.  307. 


Ch.    12]  GROUNDS    FOR    REFUSING    RELIEF.  275 

adequacy  of  price  as  a  sufficient  defense  to  the  action.50  The  modem 
rule,  however,  is  that  inadequacy  of  consideration  is  not  a  sufficient 
ground  for  refusing  specific  performance,  unless  it  is  so  gross  as  to 
shock  the  conscience,  amounting  to  conclusive  evidence  of  fraud.61 


SAME— DEFENSES   PRODUCING    DIFFERENT  RESULT  THAN 
IN    COMMON-LAW    ACTION. 

182.  The  following  defenses,  though  constantly  recur- 
ring in  common-law  actions  for  damages,  produce  in  spe- 
cific performance  actions  a  dissimilar,  or,  at  any  rate,  not 
a  precisely  similar,  result: 

(a)  Lapse  of  time. 

(b)  Fraud  and  mistake. 

(c)  Uncertainty  and  indefiniteness  of  contract. 

(d)  Want  of  good  title. 

(e)  Default  on  plaintiff's  part. 

(f )  The  statute  of  frauds. 

Lapse  of  Time. 

Equity  aids  the  vigilant,  not  those  who  slumber  on  their  rights. 
Independent  of  the  statute  of  limitations,  the  rules  of  equity  require 
the  plaintiff  to  exert  himself  energetically.  He  must  come  within  a 
reasonable  time  with  his  demand.  Laches  will  disentitle  him  to  as- 
sistance.82 Especially  is  this  the  case  when  the  subject-matter  of  the 
contract  is  an  article  of  fluctuating  value,  so  that  delay  may  greatly 
change  the  aspect  of  the  bargain.63 

bo  Falcke  v.  Gray,  4  Drew.  651. 

5i  Watson  v.  Doyle,  130  111.  415,  22  N.  E.  613;  Lee  v.  Kirby,  104  Mass.  420; 
Randolph's  Ex'r  v.  Quidnick  Co.,  135  U.  S.  457,  10  Sup.  Ct.  655.  See,  also, 
ante,  141. 

52  Moore  v.  Blake,  1  Ball  &  B.  62;  Smith  v.  Clay,  3  Brown,  Ch.  610,  note; 
Eads  v.  Williams,  4  De  Gex,  M.  &  G.  674,  691;  Cocanaugher  v.  Green  (Ky.) 
20  S.  W.  542;  Young  v.  Young,  45  N.  J.  Eq.  27,  39,  16  Atl.  921;  McCabe  v. 
Mathews,  40  Fed.  338;  Alexander  v.  Wunderlich,  118  Pa.  St.  610,  12  Atl. 
580;  Blackwell  v.  Ryan,  21  S.  C.  112;  Ridgway  v.  Ridgway,  69  Md.  242,  14 
Atl.  659;  Boston  &  M.  R.  Co.  v.  Bartlett,  10  Gray  (Mass.)  384. 

53  Pollard  v.  Clayton,  1  Kay  &  J.  462;  Deen  v.  Milne,  113  N.  Y.  303,  309, 
20  N.  E.  861;   Combs  v.  Scott,  76  Wis.  662,  45  N.  W.  532;    Penrose  v.  Leeds, 


276  EQUITABLE    REMEDIES.  [Ch.    12 

Fraud  and  Mistake. 

The  subjects  of  fraud  and  mistake  have  already  been  fully  con- 
sidered.04 If  a  contract  is  such  that  equity  would  rescind  it  for 
fraud  or  mistake,  a  fortiori  it  will  refuse  specific  performance,  be- 
cause plaintiff  must  come  into  equity  with  clean  hands.55  State- 
ments contrary  to  fact,  made  by  a  party  with  a  view  to  a  contract, 
are  grounds  for  resisting  specific  performance,  though  the  party 
making  them  believed  them  to  be  true.58  Silence  as  to  material  facts 
by  one  party  is  a  defense  to  the  other  in  a  specific  performance  ac- 
tion." A  mistake  of  one  party,  contributed  to  by  the  other  either 
intentionally  or  unintentionally,  is  ground  for  refusing  specific  per- 
formance.58 The  principle  goes  even  further;  and  a  mistake  of  one 
of  the  parties,  not  contributed  to  by  the  other,  has  been  held  a  valid 
defense; 59  but  generally  the  cases  where  a  defendant  has  escaped  on 
the  ground  of  a  mistake  not  contributed  to  by  plaintiff  have  been 
cases  where  it  would  have  amounted  to  an  injustice  to  hold  him  to 
his  bargain.60 
Contract  must  be  Definite  and  Certain. 

A  greater  amount  of  certainty  is  required  in  an  action  for  specific 
performance  of  a  contract  than  in  an  action  for  damages.  To  sus- 
tain the  common-law  action,  plaintiff  need  prove  only  the  negative 

46  N.  J.  Eq.  294.  29G.  19  Atl.  134;  Ruff's  Appeal.  117  Pa.  St.  319;  11  Atl.  553; 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Stewart,  19  Fed.  5. 

04  Ante,  117. 

B5  Vigers  v.  Pike,  8  Clark  &  F.  5G2,  565;   Cathcart  v.  Robinson,  5  Pet.  264. 

ee  In  re  Banister,  12  Ch.  Div.  131,  142;  Holmes'  Appeal.  77  Pa.  St.  50; 
Isaacs  v.  Strainka,  95  Mo.  517,  8  S.  W.  427;  Kelly  v.  Central  Pac.  R.  Co.. 
74  Cal.  557,  16  Pac.  3S6. 

57  Byars  v.  Stubbs,  85  Ala.  256,  4  South.  755;  Margraf  v.  Muir,  57  N.  Y. 
155;  Baskcomb  v.  Beckwith,  L.  R.  8  Eq.  100. 

ss  Denny  v.  Hancock,  6  Ch.  App.  1;  Campbell  v.  Durham,  86  Ala.  299,  5 
South.  507. 

59  Webster  v.  Cecil,  30  Beav.  62;  Malins  v.  Freeman,  2  Keen,  25;  Buckley 
v.  Patterson,  39  Minn.  250,  39  N.  W.  490;  Burkhalter  v.  Jones,  32  Kan.  5, 
3  Pac.  559. 

6<>  Where  there  has  been  no  fraud  or  misrepresentation,  and  the  terms  of 
the  contract  are  unambiguous,  so  that  there  is  no  reasonable  ground  or  excuse 
for  a  mistake,  it  is  not  sufficient,  in  order  to  resist  specific  performance,  for 
a  party  to  say  that  he  did  not  understand  its  meaning.  Caldwell  v.  Depew* 
40  Minn.  528,  42  N.  W.  479. 


Ch.   12]  GROUNDS    FOR    REFUSING    RELIEF.  277 

proposition  that  defendant  has  not  performed  the  contract, — a  con- 
clusion which  may  be  often  arrived  at  without  any  exact  considera- 
tion of  the  terms  of  the  contract;  while,  in  proceedings  for  specific 
performance,  it  must  appear  not  only  that  the  contract  has  not 
been  performed,  but  what  is  the  contract  which  is  to  be  performed.61 
It  is,  perhaps,  impossible  to  lay  down  any  general  rule  as  to  what  is 
sufficient  certainty  in  a  contract;  but  it  must  contain  a  description 
of  the  subject-matter,  parties,  price,  and  other  terms.62  When  re- 
duced to  writing,  the  description  may  be  identified  by  extrinsic  evi- 
dence, and  the  maxim,  "That  is  certain  which  may  be  made  certain," 
applies.63  When  the  contract,  specifies  a  mode  of  ascertaining  the 
price,  which  is  essential,  specific  performance  will  not  be  decreed, 
unless  that  mode  has  been  followed.64 

Want  of  Good  Title. 

The  vendor  must  make  out  a  title  free  from  reasonable  doubt, — 
a  marketable  title,  as  it  is  called.65  But  a  title  will  not  be  considered 
doubtful  merely  because  there  is  a  slight  risk  of  some  future  litiga- 

«i  Fry,  Spec.  Perf.  (3d  Am.  Ed.)  173. 

62  Ross  v.  Purse,  17  Colo.  24,  28  Pac.  473;  Iron  Age  Pub.  Co.  v.  W.  U.  Tel. 
Co.,  83  Ala.  498,  3  South.  449;  Woods  v.  Evans,  113  111.  186;  Ham  v.  Johnson 
(Minn.)  50  N.  W.  584;  Walcott  v.  Watson  (Cir.  Ct.)  53  Fed.  429;  Hennessey 
v.  Woolworth,  128  U.  S.  440,  9  Sup.  Ct.  109;  Crouse  v.  Frothingham,  97  N. 
Y.  105;  Anderson  v.  Brinser,  129  Pa.  St.  376,  11  Atl.  809,  and  18  Atl.  520. 
Indefiniteness  as  to  consideration,  Weaver  v.  Shenk,  154  Pa.  St.  206,  26  Atl. 
811;  Fogg  v.  Price,  145  Mass.  513,  14  N.  E.  741;  Huff  v.  Shepavd,  58  Mo.  242; 
Pray  v.  Clark,  113  Mass.  2S3;  Maud  v.  Maud,  33  Ohio  St  147.  Indefinite 
•description  of  subject-matter,  Preston  v.  Preston,  95  U.  S.  200;  Eggleston  v. 
Wagner,  46  Mich.  610,  10  N.  W.  37;  Minneapolis  &  St.  L.  Ry.  Co.  v.  Cox,  76 
Iowa,  300,  41  N.  W.  24;  Combs  v.  Scott,  76  Wis.  662,  45  N.  W.  532;  Mann 
v.  Higgins,  83  Cal.  66,  23  Pac.  206;  Olmstead  v.  Abbott,  61  Vt.  281.  18  Atl.  315. 

63  Shardlow  v.  Cotterell,  20  Ch.  Div.  90;  Ragsdale  v.  Mays,  65  Tex.  255; 
Docter  v.  Hellberg,  65  Wis.  415,  27  N.  W.  176. 

64  Firth  v.  Midland  Ry.  Co.,  L.  R.  20  Eq.  100;  Woodruff  v.  Woodruff,  44  N. 
J.  Eq.  349,  16  Atl.  4;  Hopkins  v.  Gilman,  22  Wis.  476;  Graham  v.  Call,  5 
Munf.  (Va.)  396. 

65  Vought  v.  Williams,  120  N.  Y.  253,  24  N.  E.  195;  Townshend  v.  Goodf el- 
low,  40  Minn.  312,  41  N.  W.  1056;  Emmert  v.  Stouffer.  04  Md.  543,  3  Atl. 
273,  and  6  Atl.  177;  Cornell  v.  Andrews,  35  N.  J.  Eq.  7;  Adams  v.  Valentine, 
33  Fed  1;  People  v.  Open  Board,  92  N.  Y.  98. 


278  EQUITABLE    REMEDIES.  [Ch.   12 

tion  against  the  purchaser,88  nor  where  it  would  be  the  duty  of  the 
judge  to  give  a  clear  direction  to  the  jury  in  favor  of  the  title,  and 
not  leave  the  evidence  generally  to  its  consideration.87 
/'    :  nit  on  Plaintiff's  Port. 

The  plaintiff  must  perform  the  material  and  essential  terms  of 
the  contract,  or  equity  will  refuse  specific  performance  in  his  favor.68 
Generally,  the  dispute  arises  as  to  whether  he  has  performed  within 
the  proper  time.  At  law,  failure  of  the  plaintiff  to  perform  all  the 
conditions  of  his  contract  within  the  time  specified  therein  was 
always  a  bar  to  an  action.09  In  equity,  the  question  of  time  was 
differently  regarded;  for  a  court  of  equity  discriminated  between 
those  terms  of  a  contract  which  were  formal  and  those  which  were 
of  the  substance  and  essence  of  the  agreement;70  and,  applying  to 
contracts  those  principles  which  had  governed  its  interference  in 
relation  to  mortgages,  it  held  that  the  principal  object  of  the  parties 
was  the  sale  of  an  estate  for  a  specified  sum,  and  that  the  particular 
day  named  in  the  contract  for  its  completion  was  nonessential.71 
Specific  performance  will  therefore  be  granted,  notwithslanding  plain- 
tiff's failure  to  keep  the  dates  assigned  by  the  contract,  at  least 
in  cases  where  the  element  of  time  is  clearly  of  no  consequence.72 

66  First  African  M.  B.  Soc.  v.  Brown,  147  Mass.  296,  298.  17  N.  E.  549;  Hell- 
reigel  v.  Manning,  97  N.  Y.  56;  Cambrelleng  v.  Purton.  125  N.  Y.  610,  26  N. 
E.  907;  Stevenson  v.  Polk,  71  Iowa,  278,  32  N.  W.  340;  Hedderly  v.  Johnson, 
42  Minn.  443,  44  N.  TV.  527. 

67  Chesman  v.  Cummings,  142  Mass.  65,  67,  7  N.  E.  130.  The  parties  inter- 
ested should,  however,  all  be  before  the  court.  Fleming  v.  Burnham,  100  N. 
Y.  1,  9,  2  N.  E.  905. 

es  Hagserty  v.  Elyton  Land  Co.,  89  Ala.  428,  7  South.  651;  Eastman  v. 
Plumer,  46  N.  H.  464;  Chicago  Municipal  G.  L.  &  F.  Co.  v.  Town  of  Lake, 
130  111.  42,  22  N.  E.  610;  Alexander  v.  Wunderlich,  118  Pa.  St  610,  12  AtL  580. 

6»  Stowell  v.  Robinson,  3  Bin?.  N.  C.  928. 

to  Parkin  v.  Thorold,  16  Beav.  59. 

71  Per  Lord  Eldon  in  Seton  v.  Slade,  7  Ves.  273. 

72  Sylvester  v.  Born,  132  Pa.  St.  467,  19  Atl.  337;  Dynan  v.  McCulloch,  46 
N.  J.  Eq.  11,  14,  18  Atl.  822;  Day  v.  Hunt,  112  N.  Y.  191,  195,  19  N.  E.  414; 
Maltby  v.  Austin,  65  Wis.  527,  27  X.  W.  102;  Dresel  v.  Jordan,  104  Mass. 
407;  Taught  v.  Cain,  31  W.  Va.  424,  427,  7  S.  E.  9;  Hunkins  v.  Hunkins,  65 
N.  H.  95,  18  Atl.  655;  Tilley  v.  Thomas,  3  Ch.  App.  .67.  Delay  on  plaintiff's 
part  must  uot,  however,  be  so  loug  as  to  amount  to  laches.    See  ante,  275. 


Ch.    12]  GROUNDS    FOR    REFUSING    RELIEF.  27  9 

There  are  some  cases,  however,  where  time  is  deemed  the  essence 
of  the  contract,  even  in  equity.  An  express  stipulation "  that  time  is 
of  the  essence  of  the  contract,  or  that  the  agreement  shall  be  void 
if  it  is  not  completed  on  a  specified  day,  will  be  respected  in  equity.73 
And,  though  time  be  not  originally  of  the  essence,  yet  where  there 
has  been  great  and  unreasonable  delay  on  the  one  side,  the  other 
party  has  a  right  to  fix  a  reasonable  time  within  which  the  contract 
is  to  be  completed,  aud  that  time  will  be  regarded  and  insisted  on  by 
equity.74     The  notice  must,  however,  be  reasonable  in  its  terms.75 

Again,  the  nature  of  the  property  itself  may  be  such  as  to  make 
time  of  the  essence  of  the  contract,  without  any  express  stipulation. 
Contracts  for  the  purchase  of  property  of  a  fluctuating  value  are  of 
this  description;70  as  in  the  case  of  mining  property77  or  stocks.78 
So,  on  the  sale  of  a  public  house  as  a  going  concern,  time  is  deemed 
of  the  essence  of  the  contract.79 

If  time  has  been  made  of  the  essence  of  the  contract  by  agreement, 
or  is  considered  so  by  reason  of  the  nature  of  the  property,  or  be- 
comes so  by  notice  during  the  progress  of  the  transaction,  it  may  be 
enlarged  or  waived  by  subsequent  agreement,  or  by  the  conduct  of 
the  parties.80 

73  Hudson  v.  Bartram,  3  Madd.  440;  Cheney  v.  Libby,  134  U.  S.  6S,  10  Sup. 
Ct  498;  Woodruff  v.  Semi-Tropic  Land  &  Water  Co.,  87  Cal.  275,  25  Pac. 
354;  Sowles  v.  Hall,  62  Vt.  247,  20  Atl.  810;  Barnard  v.  Lee,  97  Mass.  92; 
Jones  v.  Robbins,  29  Me.  351.  A  stipulation  that  time  is  of  the  essence  of  the 
contract  was  disregarded  in  Merriam  v.  Goodlett,  3G  Neb.  384,  54  N.  W.  086. 

74  King  v.  Wilson,  6  Beav.  126;  Reed  v.  Breeden,  61  Pa.  St.  460;  Thompson 
v.  Dulles,  5  Rich.  Eq.  370;  Smith  v.  Lawrence,  15  Mich.  499;  Carter  v. 
Phillips,  144  Mass.  100,  10  N.  E.  500. 

75  Green  v.  Sevin,  13  Ch.  Div.  5S9;  Austin  v.  Wacks,  30  Minn.  335.  15  N. 
W.  409. 

76  Edwards  v.  Atkinson,  14  Tex.  373;  Wilson  v.  Roots,  119  111.  379,  10 
N.  E.  204;  Goldsmith  v.  Guild,  10  Allen,  239;  Jennisons  v.  Leonard,  21  Wall. 
302. 

77  Waterman  v.  Banks,  144  U.  S.  394.  12  Sup.  Ct.  646;  Macbryde  v.  Weekes, 
22  Beav.  533. 

78  Doloret  v.  Rothschild,  1  Sim.  &  S.  590. 
78  Day  v.  Luhke,  L.  R.  5  Eq.  336. 

so  Dana  v.  St.  Paul  Investment  Co.,  42  Minn.  194,  44  N.  W.  55;  Merriam 
v.  Goodlett,  36  Neb.  384,  54  N.  W.  686;  Cartwright  v.  Gardner,  5  Cush.  273. 
280,  2S1;  Boyes  v.  Liddell,  6  Jur.  725. 


280  EQUITABLE    REMEDIES.  [Ch.    12 

SAME— STATUTE    OF   FRAUDS    AS   A   DEFENSE. 

183.  Though  a  contract  has  not  been  reduced  to  "writing 
as  required  by  the  statute  of  frauds,  equity  -will  specif- 
ically enforce  it  in  three  classes  of  cases: 

(a)  Where  there  has  been  some  part  performance   of 

the  contract  by  plaintiff. 

(b)  Where  fraud  has  been  used  to  prevent  the  contract 

from  being  properly  reduced  to  -writing. 

(c)  Where   defendant   fails  to    plead   the   statute  as  a 

defense. 

The  statute  of  frauds  enacts  that  no  action  shall  be  brought  on 
a  contract  for  sale  of  real  estate  unless  in  writing,  and  signed  by  the 
party  to  be  charged.  Notwithstanding  this  enactment,  there  are 
many  cases  in  which  equity  has  interfered  out  of  its  regard  for  con- 
siderations which  the  courts  of  common  law  refused  to  recognize. 
The  reasoning  on  which  courts  of  equity  have  acted,  in  what  has 
been  termed  their  boldest  encroachment  on  the  functions  of  the 
legislature,81  is  this:  The  statute  of  frauds  was  passed  to  prevent 
fraud,  and  never  could  have  been  intended  by  the  legislature  as  an 
instrument  of  fraud;  and  therefore  a  man  who  has  procured  some 
benefit  from  another  on  the  faith  of  an  oral  promise  will  not  be  per- 
mitted to  turn  around  and  fail  to  perform  that  promise,  on  the  ground 
that  the  formalities  required  by  the  statute  have  not  been  observed. 
In  such  cases  the  defendant  is  really  charged  upon  the  equities  re- 
sulting from  the  acts  done  in  execution  of  the  contract,  and  not 
upon  the  contract  itself.82 

Part  Performance. 

The  majority  of  the  cases  in  which  relief  is  given,  notwithstand- 
ing the  statute  of  frauds,  are  those  where  the  agreement  has  been 
in  part  performed  by  the  plaintiff.  The  doctrine  is  completely  estab- 
lished that  contracts  relating  to  land  may  be  taken  out  of  the  oper- 

8i  Britain  v.  Rossiter,  11  Q.  B.  Div.  123,  129;   Maddison  v.  Alderson,  8  App. 
Cas.  467. 
82  Maddison  v.  Alderson,  8  App.  Cas.  467,  474,  per  Lord  Selborne. 


Ch.    12]  GROUNDS    FOR    REFUSING    RELIEF.  281 

ation  of  the  statute  of  frauds  by  part  performance.83  In  the  leading 
case  on  the  subject,  specific  performance  of  an  oral  agreement  was 
decreed,  because  plaintiff  had  incurred  considerable  expense  and 
trouble  in  pulling  down  an  old  house,  and  building  new  ones,  ac- 
cording to  the  terms  of  the  agreement;  it  being  considered  against 
conscience,  under  such  circumstances,  for  defendant  to  plead  the 
statute.84  In  order,  however,  to  prevent  the  recurrence  of  the  mis- 
chief which  the  statute  was  passed  to  suppress,  the  application  of 
the  equity  of  part  performance  has  been  limited  by  certain  prin- 
ciples. 

1.  The  acts  must  be  such  as  are  indisputably  referable  to  the  con- 
tract in  question,  and  not  referable  to  any  other  title.85  Whether  or 
not  admission  into  possession  of  an  estate  will  be  considered  part 
performance  depends  on  circumstances.  If  it  has  unequivocal  ref- 
erence to  the  contract,  it  is  sufficient,88  That  a  stranger  should  be 
found  in  acknowledged  possession  of  the  land  of  another  is  strong 
evidence  of  an  antecedent  agreement,  and  is  usually  sufficient  to 
warrant  an  application  for  relief  in  equity; 8T  a  fortiori  where  plain- 

83  Maddison  v.  Alderson,  8  App.  Cas.  467;  Lester  v.  Foxcroft,  Colles.  103,  1 
White  &  T.  Lead.  Cas.  Eq.  1027.  1038,  1042;  Freeman  v.  Freeman.  43  N.  Y. 
34;  Hiatt  v.  Williams,  72  Mo.  214;  Schuey  v.  Sehaeffer,  130  Pa.  St.  18,  18  Atl. 
544;  McWhinne  v.  Martin,  77  Wis.  1S2,  46  N.  W.  118;  Union  Pac.  Ry.  Co.  v. 
McAlpine,  129  U.  S.  305,  9  Sup.  Ct.  286;  Young  v.  Young,  45  N.  J.  Eq.  34,  16 
Atl.  921;  Starkey  v.  Starkey  (Ind.  Sup.)  36  N.  E.  2S7;  Von  Trotha  v.  Bam- 
berger, 15  Colo.  1,  24  Pac.  883;  Popp  v.  Swanke,  68  Wis.  364,  31  N.  W.  916. 
In  some  of  the  American  states,  however,  the  doctrine  of  part  performance 
seems  to  be  rejected.  White  v.  O'Bannon,  S6  Ky.  93,  5  S.  W.  346;  Buchan- 
non  v.  Little  (Ky.  App.)  22  S.  W.  559;  Holmes  v.  Holmes,  86  N.  C.  205;  Niles 
v.  Davis,  60  Miss.  750. 

84  Lester  v.  Foxcroft  (1701)  1  White  &  T.  Lead.  Cas.  Eq.  1027. 

85  Maddison  v.  Alderson,  8  App.  Cas.  467.  4S5;  Allen  v.  Young,  88  Ala.  338, 
6  South.  747;  Neibert  v.  Baghurst  (N.  J.  Ch.)  25  Atl.  474;  Rogers  v.  Wolfe, 
104  Mo.  1,  14  S.  W.  805;  Morrison  v.  Herrick,  130  111.  631,  642,  22  N.  E.  537; 
Truman  v.  Truman,  79  Iowa,  506,  44  N.  WT   721. 

se  Clinan  v.  Cooke,  1  Schoales  &  L.  22;  Danforth  v.  Laney,  28  Ala.  274;  Sit- 
ton  v.  Shipp,  65  Mo.  297;  Knoll  v.  Harvey,  19  Wis.  99;  Cole  v.  Potts,  10  N.  J. 
Eq.  67.  See,  also,  Ferbrache  v.  Ferbrache,  110  111.  210;  Heflin  v.  Milton,  U9 
Ala.  354;  Holmes  v.  Caden,  57  Vt  111. 

87  Morphett  v.  Jones,  1  Swanst.  181;  Mundy  v.  Jolliffe,  5  Mylne  &  C.  167; 
Pain  v.  Coombs,  1  De  Gex  &  J.  34,  46;   Eaton  v.  Whitaker,  18  Conn.  222,  229; 


282  EQUITABLE    REMEDIES.  [Ch.   12 

tiff  has  made  improvements  and  laid  out  money  on  the  land.88  On 
the  other  hand,  if  the  possession  can  reasonably  be  accounted  for 
apart  from  the  alleged  contract,  it  will  not  suffice.  Thus,  the  nwe 
continuance  in  possession  of  a  tenant  is  not  a  part  performance  of 
an  agreement  for  a  new  lease,  since  the  possession  may  be  referred 
to  the  old  lease.80  Such  continued  possession,  however,  accompanied 
by  expenditures  in  improving  the  premises,  or  the  payment  of  an  in- 
creased rent,  referable  only  to  the  new  agreement,  has  been  held 
an  act  of  part  performance.90 ' 

2.  Acts  that  are  merely  auxiliary  and  introductory,  such  as  de- 
livery of  abstract,  measurement  of  the  land,  etc.,  are  clearly  insuffi- 
cient to  take  the  contract  out  of  the  statute  of  frauds.91 

3.  Acts  capable  of  being  undone,  and  admitting  of  the  parties'  be- 
ing remitted  to  their  original  position,  are  of  no  avail.  Thus,  part 
payment,  or  even  entire  payment,  of  the  purchase  money,  is  not. 
sufficient  to  entitle  to  relief.  Here  the  legal  remedy  would  be  quite 
adequate;  return  of  the  money,  with  interest,  being  a  complete  re- 
dress.92 Marriage,  however,  is  not  of  itself  a  sufficient  part  perform- 
ance; the  statute  of  frauds  expressly  enacting  that  every  agreement 

Reed  v.  Reed,  12  Pa.  St.  117;  Wallace  v.  Scoggins,  17  Or.  476,  21  Pac.  558; 
Morrison  v.  Herrick,  130  111.  G31,  642,  22  N.  E.  537;  Recknagle  v.  Schmaltz. 
72  Iowa,  63,  33  N.  W.  3G5. 

88  Crook  v.  Corp.  of  Seaford,  6  Ch.  App.  551;  Freeman  v.  Freeman.  43  N.  Y.  34; 
Moss  v.  Culver,  64  Pa.  St.  414;  Union  Pac.  Ry.  Co.  v.  McAlpine,  129  U.  S.  305. 
9  Sup.  Ct.  286;  Burlingame  v.  Rowland,  77  Cal.  315,  19  Pac.  526;  Everett  v. 
Dilley,  39  Kan.  73,  17  Pac.  661;  Hunkins  v.  Hunkins,  65  N.  H.  95,  IS  Atl.  665; 
Frame  v.  Frame,  32  W.  Va.  463,  9  S.  E.  901. 

89  Wills  v.  Stradling,  3  Ves.  378;  Ewins  v.  Gordon,  49  N.  H.  444;  Morrison 
v.  Herrick,  130  111.  631,  642,  22  N.  E.  537;  Recknagle  v.  Schmaltz,  72  Iowa, 
63,  33  N.  W.  365. 

so  Nunn  v.  Fabian,  1  Ch.  App.  35;  Pfiffner  v.  S.  &  St.  P.  R.  Co.,  23  Minn. 
343. 

9i  Hawkins  v.  Holmes,  1  P.  Wins.  770;  Pembroke  v.  Thorpe,  3  Swanst.  437, 
note;  Phillips  v.  Edwards,  33  Beav.  440;  Lydick  v.  Holland,  83  Mo.  703;  Nibert 
v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252;   Colgrove  v.  Solomon,  34  Mich.  494. 

92  Clinan  v.  Cooke,  1  Schoales  &  L.  22,  40;  Hughes  v.  Morris,  2  De  Gex,  M.  & 
G.  349,  356;  Gallagher  v.  Gallagher,  31  W.  Va.  9,  14,  5  S.  E.  297;  Townsend  v. 
Fenton,  30  Minn.  528,  16  N.  W.  421;  Id.,  32  Minn.  482,  21  N.  W.  726;  Nibert 
v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252;  Winchell  v.  Winchell,  100  N.  Y.  159, 
163,  2  N.  E.  897;  Forrester  v.  Flores,  64  Cal.  24,  28  Pac.  107. 


Ch.   12]  SPECIFIC    PERFORMANCE    WITH    A    VARIATION.  283 

made  in  consideration  of  marriage  must  be  in  writing.93  But  if  an 
antenuptial  verbal  agreement  for  the  conveyance  of  land  is  followed, 
not  only  by  marriage,  but  by  the  expenditure  of  money,  that  is  suffi- 
cient.94 

4.  The  equity  of  part  performance  applies  only  to  contracts  re- 
specting lands.     It  does  not  affect  other  contracts  within  the  statute; 
for  instance,  a  contract  not  to  be  performed  within  a  year.95 
Fraud  Preienting  Execution  of  Proper  Written  Contract. 

Where  the  agreement  was  intended  to  have  been  in  writing  ac- 
cording to  the  statute,  but  this  has  been  prevented  from  being  done 
by  the  fraud  of  the  defendant,  equity  has  granted  specific  perform- 
ance; otherwise,  the  statute,  designed  to  prevent  fraud,  would  be 
used  as  a  protection  for  it.98  Thus,  where  a  vendor  who  has  agreed 
to  sell  certain  land  receives  the  full  consideration,  and  then  fraudu- 
lently gives  a  deed  conveying  only  part  of  the  land,  specific  perform- 
ance will  be  decreed,  even  though  the  contract  was  oral.97 
Failure  to  Plead  Statute. 

The  statute  of  frauds  is  an  affirmative  defense,  and  is  waived  unless 
pleaded.98  Hence  the  court  will  specifically  enforce  an  oral  con- 
tract where  defendant  has  neglected  to  claim  the  benefit  of  the 
statute.98 

SPECIFIC   PERFORMANCE    WITH   A   VARIATION. 

184.  Though  a  contract  cannot  be  strictly  carried  out 
according     to     its    terms,    specific    performance    -will    be 

93  Warden  v.  Jones,  23  Beav.  487;  Peek  v.  Peek,  77  Cal.  106,  19  Pac.  227; 
Henry  v.  Henry,  27  Ohio  St  121;   Adams  v.  Adams,  17  Or.  247,  20  Pac.  633. 

e*  Surcome  v.  Pinniger,  3  De  Gex,  M.  &  G.  571;  Welch  v.  Whelpley,  62  Mich. 
15,  28  N.  W.  744. 

95  Britain  v.  Rossiter,  11  Q.  B.  Div.  123;  Osborne  v.  Kimball,  41  Kan.  187, 
21  Pac.  163;   Wahl  v.  Barnum,  116  N.  Y.  87,  98,  22  N.  E.  2S0. 

96  1  Story,  Eq.  Jur.  §  161. 

9T  McDonald  v.  Yungbluth,  46  Fed.  836;  Hitchins  v.  Pettingill,  58  N.  H.  386; 
Murray  v.  Drake,  46  Cal.  648.     Contra,  Glass  v.  Hulbert,  102  Mass.  24. 

98  Maybee  v.  Moore,  90  Mo.  340,  2  S.  W.  471;  McClure  v.  Otrich,  118  111.  320, 
8  N.  E.  784;   Crane  v.  Powell,  139  N.  Y.  379,  34  N.  E.  911. 

99  Cooth  v.  Jackson,  6  Ves.  39;  Dodd  v.  Wakeman,  26  N.  J.  Eq.  484;  Cloud 
v.  Greasley,  125  111.  313,  17  N.  E.  826;  Shakespeare  v.  Alba,  76  Ala.  351;  Fall 
v.  Hazelrigg,  45  Ind.  581;  Battell  v.  Matot,  58  Vt.  271,  5  Atl.  479. 


EQUITABLE   REMEDIES.  [Ch.  12 

granted,  if  proper  compensation  can  be  made,  and  the 
parties  in  fact  put  in  the  same  situation  as  if  the  contract 
had  been  strictly  fulfilled. 

The  specific  enforcement  of  contracts  which  cannot  be  literally 
fulfilled,  with  a  compensation  for  defects,  affords  one  of  the  most 
striking  illustrations  of  the  contrast  between  the  principles  and 
methods  of  equity  and  those  which  prevailed  in  the  courts  of  com- 
mon law.  At  law,  a  vendor  cannot  recover  part  of  the  purchase 
money  if  he  is  unable  to  literally  perform  the  contract;  nor  can  the 
purchaser  insist  on  paying  a  part  only,  in  respect  of  a  partial  failure 
in  the  sale.100  A  different  rule,  however,  prevails  in  equity.  There 
are  two  classes  of  cases  where  a  contract  not  capable  of  literal  per- 
formance will  be  specifically  enforced,  with  a  compensation  for  de- 
fects: (1)  Where  there  is  a  variance  as  to  the  time  in  which  the 
contract  is  to  be  performed;  (2)  where  there  is  a  variance  in  the  sub- 
ject-matter of  the  sale. 
Variance  as  to  Time. 

We  have  already  seen  that,  as  a  rule,  time  is  not  deemed  the  es- 
sence of  a  contract  in  equity.  But  in  all  cases  where  specific  per- 
formance has  been  decreed,  notwithstanding  a  discrepancy  in  time, 
compensation  has  been  made  to  the  party  injured  by  the  delay.  Ordi- 
narily, a  purchaser  is  entitled  to  the  rents  and  profits  of  the  estate 
from  the  time  at  which  the  contract  ought  to  have  been  completed, 
and  the  vendor  is  entitled  to  interest  on  the  unpaid  purchase  money 
from  the  same  time.101  If  there  has  been  delay  in  making  out  the 
title,  and  the  property  has  deteriorated  by  dilapidation  or  misman- 
agement, compensation  will  be  allowed  to  the  purchaser,102  but  not 
for  deterioration  after  the  time  when  he  ought  to  have  taken  pos- 
session,103 and,  of  course,  not  for  deterioration  caused  by  himself.104 

When  time  is  of  the  essence  of  the  contract,  and  the  purchaser  ob- 

100  Adams,  Eq.  p.  89. 

ioi  De  Visme  v.  De  Visme,  1  Macn.  &  G.  34G;    Caloraft  v.  Roebuck,  1  Ves. 
Jr.  221;  Bostwick  v.  Beach,  105  N.  Y.  661,  663,  12  N.  E.  32. 

102  Foster  v.  Deacon,  3  Madd.  394;  Worrall  v.  Munn,  38  N.  Y.  137;  Bostwick 
V.  Beach,  105  N.  Y.  661,  12  N.  E.  32. 

103  Binks  v.  Rokeby,  2  Swanst.  226. 
io*  Harford  v.  Purrier,  1  Madd.  532. 


Ch.    12]  SPECIFIC    PERFORMANCE   WITH    A    VARIATION.  2S5 

tains  a  decree  for  specific  performance,  he  will  be  entitled  to  com- 
pensation for  the  loss  which  he  sustained  in  consequence  of  posses- 
sion not  having  been  given  to  him  according  to  the  contract.105 

Variation  as  to  Subject-Matter. 

Frequently,  a  contract  for  the  sale  of  land  cannot  be  literally  per- 
formed, either  because  of  a  discrepancy  as  to  quantity  or  the  extent 
of  the  estate  which  the  vendor  agreed  to  convey.  The  cases  on  this 
question  naturally  fall  into  two  divisions,  according  as  to  whether 
specific  performance  is  demanded  by  the  vendor  or  by  the  purchaser: 

1.  When  the  vendor  demands  specific  performance,  the  relief  will 
be  granted  on  allowing  the  purchaser  compensation,  provided  the 
contract  can  be  performed  in  substance.  No  material  part  must  be 
wanting.106  Thus,  a  deficiency  of  20  acres  in  a  contract  for  the  sale 
of  300  was  held  not  to  defeat  the  vendor's  right  to  specific  perform- 
ance, the  purchase  price  being  proportionately  abated.107  But,  if 
there  is  a  substantial  variance,  specific  performance  will  not  be  de- 
creed in  the  vendor's  favor.108  On  sale  of  an  estate  with  a  mansion, 
a  small  part  of  the  estate,  if  near  the  house,  may  be  material.109  So 
where  the  contract  was  for  a  wharf  and  jetty,  and  it  appeared  that 
the  jetty  was  liable  to  be  removed  by  the  corporation  of  London, 
specific  performance  was  refused.110 

A  material  variation  with  respect  to  the  title  contracted  to  be  sold 
is  likewise  fatal  to  a  vendor's  suit  for  specific  performance.  Thus, 
a  contract  for  the  sale  of  a  freehold  estate  will  not  be  enforced  in 
favor  of  a  vendor  who  has  merely  a  leasehold,  however  long  the 
term.111 

2.  When  the  purchaser  insists  on  the  specific  performance  of  a  con- 
tract by  a  vendor  who  has  agreed  to  sell  a  larger  interest  in  an  es- 
tate than  he  has,  the  purchaser  is  entitled  to  take  what  the  vendor 

105  Carrodus  v.  Sharp,  20  Beav.  56. 

ice  M'Queen  v.  Farquhar,  11  Yes.  467;  Vaught  v.  Cain,  31  W.  Va.  424,  7  S. 
E.  9;  Towner  v.  Tickner,  112  111.  217,  244. 

107  Morgan's  Adm'r  v.  Brast,  34  W.  Va.  332,  12  S.  E.  710.  See,  also,  Farm 
v.  Hughes  (Va.)  17  S.  E.  518. 

io8  Kenner  v.  Bitely,  45  Fed.  133. 

109  Perkins  v.  Ede,  16  Beav.  193;  Knatchbull  v.  Grueber,  3  Mer.  124. 

no  Peers  v.  Lambert,  7  Beav.  546. 

"i  Drewe  v.  Corp.,  9  Ves.  368. 


28G  EQUITABLE    REMEDIES.  [Ch.   12 

can  give,  and  demand  compensation  for  what  he  cannot  give; 112  and 
this  whether  the  difference  is  one  of  tenure  or  of  quantity.113  This 
has  been  done,  even  when  the  difference  in  quantity  amounted  to  as 
much  as  one-half.1"  And  so.  though  the  vendor's  wife  refuse  to 
join  in  the  deed,  and  release  her  inchoate  dower  right,  the  purchaser 
may  compel  specific  performance,  with  an  abatement  of  the  price  to 
compensate  him  for  the  defect.116  So,  also,  if  the  vendor  agrees  to 
convey  a  title  free  of  incumbrances,  the  purchaser  may  compel  specific 
performance  with  an  abatement  of  the  purchase  price  to  the  extent 
of  incumbrances.118 

It  sometimes  happens  that,  in  a  suit  for  specific  performance  by 
a  purchaser,  it  appears  that  the  vendor  has  no  title  whatever  to  any 
portion  of  the  premises.  In  such  cases  the  rule  is  that  equity  will 
retain  jurisdiction  to  award  damages,  if  the  suit  was  brought  in  good 
faith,  without  knowledge  of  the  defect;117  but  not  if  plaintiff  had 
such  knowledge.118 

Parol  Evidence  to  Shoio  Variation. 

We  have  already  seen  that  the  rule  which  prohibits  the  admission 
of  parol  evidence  to  vary  a  written  contract  has  no  application  to 

112  Hill  v.  Buckley,  17  Ves.  401;  Mortlock  v.  Buller,  10  Ves.  315;  Wallins  v. 
Kinnard,  10  Tex.  508;  Harbers  v.  Gadsden.  G  Rich.  Eq.  (S.  C.)  284;  Bostwiek 
v.  Beach,  103  N.  Y.  414,  422,  9  N.  E.  41;  Docter  v.  Hellberg,  65  Wis.  415,  27 
N.  W.  176;  Lancaster  v.  Roberts  (HI.  Sup.)  33  N.  E.  27;  Roberts'  Heirs  v. 
Lovejoy,  60  Tex.  253,  257. 

us  Hughes  v.  Jones,  3  De  Gex,  F.  &  J.  307;  Hooper  v.  Smart,  L.  R.  18  Eq. 
6S3. 

ii*  Burrow  v.  Scammell,  19  Ch.  Div.  175. 

i«  Davis  v.  Parker,  14  Allen,  94,  98,  104;  Bostwiek  v.  Beach,  103  N.  T.  414. 
9  N.  E.  41;  Martin  v.  Merritt,  57  Ind.  34.  Some  of  the  courts,  however,  hold 
that  the  wife  will  not  be  indirectly  coerced  into  releasing  her  dower  right,  and 
that,  therefore,  the  purchaser  must  pay  the  full  purchase  price  if  he  insists  on 
specific  performance,  without  any  abatement  for  the  outstanding  dower  inter- 
est    Graybill  v.  Braugh  (Va.)  17  S.  E.  558;  Burk's  Appeal,  75  Pa.  St.  141. 

ne  Grant  v.  Beronio  (Cal.)  32  Pac.  556;  Hunt  v.  Smith,  139  HI.  296,  28  N.  E. 
809. 

iiT  Cunningham  v.  Duncan,  4  Wash.  506,  30  Pac  647;  Combs  v.  Scott,  76 
Wis.  662,  45  N.  W.  532;  Milkman  v.  Ordway,  106  Mass.  232,  253. 

us  Morgan  v.  Bell,  3  Wash.  554,  28  Pac.  925.  See,  however,  Steraberger  v. 
McGovern,  56  N.  Y.  12,  20.  And  see,  also,  ante,  15,  "Jurisdiction  Once  At- 
tached," 


Oh.   12]  SPECIFIC   PERFORMANCE    WITH    A    VARIATION.  287 

cases  of  fraud  or  mistake.119  It  is  therefore  settled,  both  in  England 
and  America,  that  it  is  open  to  a  defendant  to  resist  a  claim  for 
specific  performance  by  means  of  parol  evidence  designed  to  show 
that,  either  because  of  fraud  or  mistake,  the  contract  as  written  does 
not  truly  express  the  agreement,  and  that  its  enforcement  would 
therefore  be  inequitable.120  But  in  England  such  parol  evidence  is 
not  admissible  in  favor  of  plaintiff  who  seeks  specific  performance  of 
a  written  contract,  with  a  variation  for  alleged  mistake  or  fraud, 
on  the  ground  that  the  court  would  thus  be  virtually  enforcing  an 
oral  agreement,  in  violation  of  the  statute  of  frauds.121  The  distinc- 
tion is  very  generally  repudiated  in  the  United  States,  and  parol  evi- 
dence is  admissible  to  show  fraud  or  mistake  in  favor  of  plaintiff 
who  seeks  specific  performance,  with  a  variation  from  the  written 
contract.122  The  American  rule  is  supported  by  the  principle,  here- 
tofore stated,  that  fraud  in  preventing  the  reduction  of  an  agreement 
to  writing  takes  the  case  out  of  the  operation  of  the  statute  of 
frauds.128 

"9  Ante,  129. 

120  Clinan  v.  Cooke,  1  Schoales  &  L.  32,  39;  Manser  v.  Back,  6  Hare,  443. 

121  Woollam  v.  Hearn,  2  White  &  T.  Lead.  Cas.  Eq.  920;  Townshend  v. 
Stangroom,  6  Ves.  328. 

122  Gillespie  v.  Moon,  2  Johns.  Ch.  585;  Fishack  v.  Ball,  34  W.  Va.  ©44,  12 
S.  E.  856;  Redfield  v.  Gleason,  61  Vt.  220,  17  Atl.  1075;  Strickland  v.  Barber, 
76  Mich.  310,  43  N.  W.  449. 

123  Ante,  283. 


2S8  EQUITABLE    REMEDIES.  [Ch.   13 

CHAPTER   XIII. 

EQUITABLE  REMEDIES  (Continued)— INJUNCTION. 

185.  Definition. 

18G.  Jurisdictional  Principles. 

187.  Classes  of  Cases  Where  Remedy  may  be  Used. 

1S8.  Injunctions  against  Proceedings  at  Law. 

189.  Injunctions  Relating  to  Contracts. 

190.  Injunctions  Relating  to  Torts. 

191.  General  Principles  Governing  Exercise  of  Jurisdiction. 

192.  Classes  of  Torts  Enjoined. 

193.  Injunctions  Relating  to  Trusts  and  Equitable  Rights. 

DEFINITION. 

185.  An  injunction  is  a  judicial  order,  operating  in  per- 
sonam, requiring  a  party  to  do  or  to  abstain  from  doing 
some  particular  act.1 

Injunctions  which  require  the  doing  of  particular  acts  are  called 
mandatory  injunctions.2  Their  occurrence  is  infrequent,  since,  in 
the  absence  of  contract,  a  court  of  equity  cannot  directly  compel  the 
performance  of  a  positive  act.  But  it  sometimes  wiU  accomplish  this 
object  in  an  indirect  form.  Thus,  railroad  companies  have  been  pre- 
vented by  mandatory  injunctions  from  entering  into  agreements  not 
to  transport  goods  at  rates  fixed  by  law;  that  is,  to  compel  them  to 
observe  the  law,  and  regulate  their  rates  according  to  statute.3  The 
most  frequent  use  of  mandatory  injunctions  is  in  cases  of  nuisances, 
where  the  court  may  compel  an  abatement  or  removal.  This  juris- 
diction, however,  is  exercised  only  in  cases  which  admit  of  no  other 

i  High,  Inj.  §  1;   Kerr,  Inj.  p.  9. 

2  High,  Inj.  §  2;   Kerr,  Inj.  p.  20. 

a  Rogers  Locomotive  &  M.  Works  v.  Erie  R.  Co.,  20  N.  J.  Eq.  379.  So  an 
Injunction  against  trustees  of  a  church,  who  had  wrongfully  excluded  the 
minister,  did  not  command  them  to  open  the  church  to  him,  but  to  desist 
and  refrain  from  keeping  it  closed.  Whitecar  v.  Michenor,  37  N.  J.  Eq.  6,  14; 
Beach,  Mod.  Eq.  §  G30. 


Ch.    13]  JURISDICTIONAL    PRINCIPLES.  289 

remedy,  and  will  always  be  refused  if  the  injury  can  be  reasonably 
compensated  in  damages,  or  even  if  the  balance  of  convenience  is 
strongly  on  the  side  of  the  defendant.4 

By  far  the  most  frequent  use  of  injunctions  is  the  prevention  of 
a  meditated  wrong,  rather  than  the  redress  of  an  injury  already  done, 
and  it  is  with  such  injunctions  that  we  have  chiefly  to  deal.5  The 
remarkable  difference  between  these  injunctions  and  the  legal  rem- 
edy of  damages  is  that  they  will  be  granted  in  advance  of  any  injury, 
provided  only  an  intention  to  do  an  act  which  will  result  in  ir- 
reparable injury  is  shown  to  exist. 

With  respect  to  their  duration,  injunctions  are  either  interlocutory 
or  final.  Interlocutory  injunctions,  which  are  also  termed  temporary 
or  preliminary  injunctions,  are  made  pending  the  hearing  of  the 
cause  on  its  merits,  and  are  generally  expressed  to  continue  until 
such  hearing  or  until  further  order.  They  are  merely  provisional, 
and  do  not  conclude  a  right.  Their  object  is  to  preserve  the  property 
subject  to  litigation  in  statu  quo  until  the  hearing  or  further  order, 
and  may  be  obtained  by  a  plaintiff  who  shows  that  he  has  a  fair 
question  to  raise  as  to  the  existence  of  the  right  which  he  alleges.6 
Final  injunctions,  or  perpetual  injunctions,  as  they  are  sometimes 
termed,  are  granted  on  the  final  hearing  on  the  merits,  and  per- 
petually restrain  the  defendant  from  the  assertion  of  a  right  or  the 
commission  of  some  act  contrary  to  equity.7 

JURISDICTIONAL   PRINCIPLES. 

186.  To  warrant  the  issuance  of  an  injunction,  complain- 
ant must  show: 

(a)  That  he  has  no  plain,  adequate,  and  complete  rem- 

edy at  law. 

(b)  That  an  irreparable   injury  will  result  unless  the 

relief  is  granted. 

*  Deere  v.  Guest,  1  Mylne  &  C.  510;  Jacomb  v.  Knight,  3  De  Gex,  J.  &  S.  538. 
»  High,  Inj.  §  1. 

«  Blakemore  v.  Glamorganshire  Canal  Navigation,  1  Mylne  &  K.  154;   High, 
Inj.  §  5. 
7  High,  Inj.  §  3. 

EQ.JUR. — 19 


290  EQUITABLE    REMEDIES.  [Ch.   13 

The  mere  fact  that  a  legal  remedy  exists  is  not  sufficient  to  pre- 
vent the  issuance  of  an  injunction.  The  question  in  all  cases  is 
whether  the  legal  remedy  is  full  and  complete.  If  the  legal  remedy 
does  not  fully  come  up  to  the  requisition  of  the  case,  the  exercise 
of  the  jurisdiction  may  be  proper  and  beneficial.8  Thus,  the  neces- 
sity of  bringing  numerous  actions  at  law  to  obtain  complete  redress 
is,  as  we  have  seen,  one  of  the  grounds  of  equitable  interference.9 

The  term  "irreparable  injury"  does  not  mean  that  there  must  be 
no  physical  possibility  of  repairing  the  injury,  but  merely  that  the 
threatened  injury  is  a  grievous  one,  or,  at  least,  a  material  one,  and 
not  adequately  reparable  by  damages.10  If  the  act  complained  of 
threatens  to  destroy  the  subject-matter  in  controversy,  the  case  may 
come  within  the  principle,  even  though  the  damages  may  be  capable 
of  being  accurately  measured.11  It  should  also  be  added  that  the 
maxims,  "He  who  comes  into  equity  must  come  with  clean  hands," 
and  "He  who  seeks  equity  must  do  equity,"  apply  with  full  force  to 
the  remedy  by  injunction. 


CLASSES    OF  CASES    WHERE    REMEDY    MAY   BE   USED. 

187.  The  remedy  by  injunction  may  be  used  in  the  fol- 
io-wing classes  of  cases: 

(a)  To  restrain  proceedings  at  law. 

(b)  To  restrain  breach  of  contract. 

(c)  To  restrain  commission  of  tort. 

(d)  To  restrain  breach  of  trust  and  violation  of  equita- 

ble rights. 

It  is,  of  course,  impossible,  within  the  limits  of  this  work,  to  specify 
ever}'  case  to  which  the  remedy  of  injunction  might  be  applied. 

sLumley  v.  Wagner,  1  De  Gex,  M.  &  G.  616;  Watson  v.  Sutherland,  5 
Wall.  74;  Payne  v.  Kansas  &  A.  V.  R,  Co.,  46  Fed.  546;  Irwin  v.  Lewis,  50 
Miss.  363. 

»  Ante,  15. 

io  Pinchin  v.  London  &  B.  Ry.  Co.,  5  De  Gex,  M.  &  G.  860;  Puckette  v. 
Judge,  39  La,  Ann.  901,  2  South.  801;  Dudley  v.  Hurst,  67  Md.  44,  8  Atl.  901; 
Hodge  v.  Giese,  43  N.  J.  Eq.  312,  11  Atl.  4S4. 

ii  Hilton  v.  Earl  of  Granville,  Craig  &  P.  2S3,  292. 


Ch.    13]  INJUNCTIONS    AGAINST    PROCEEDINGS    AT    LAW.  291 

All  that  can  be  done  is  to  illustrate  the  circumstances  in  which  the 
remedy  is  most  usually  sought;  and  it  is  believed  that  whatever 
other  cases  may  suggest  themselves  will  be  found  to  fall  within  some 
one  of  the  classes  indicated. 


INJUNCTIONS   AGAINST  PROCEEDINGS    AT    LAW. 

188.  When,  by  accident,  mistake,  or  fraud,  or  otherwise, 
a  party  has  an  unfair  advantage  in  a  court  of  law,  and  it 
is  against  conscience  that  he  should  use  that  advantage,  a 
court  of  equity  will  restrain  him. 

In  the  earlier  history  of  equity  jurisprudence,  the  remedy  of  in- 
junction was  used  almost  exclusively  to  restrain  actions  at  law.1-  The 
ground  for  imposing  this  restraint  was  the  refusal  of  common-law 
courts  to  entertain  equitable  defenses,  and  hence  a  cause  was  liable 
to  be  decided  by  them  on  consideration  of  a  part  only,  and  not  the 
whole,  of  the  dispute.13  To  render  such  equitable  defenses  effective, 
and  prevent  a  miscarriage  of  justice,  equity  would  restrain  the  plain- 
tiff personally  from  further  steps  in  the  action  at  law.  These  in 'unc- 
tions were  not  directed  against  the  courts  of  common  law,  and  did 
not  assume  to  prohibit  them  from  exercising  their  jurisdiction;  but 
they  were  directed  against  the  parties,  who  rendered  themselves  lia- 
ble for  contempt  towards  the  equity  court  if  they  persisted  in  mov- 
ing a  step  in  disobedience  to  the  injunction.14     Since  these  injunc- 

12  "The  weapon  of  injunction  was  wielded  by  the  court  until  the  present 
century  with  little  of  its  later  effect.  Whenever  a  prima  facie  case  for  the 
exercise  of  equitable  interference  to  stay  action  at  law  was  established,  the 
'common  injunction'  might  be  obtained  on  motion  or  at  the  healing.  'Pre- 
vention of  mischief  by  injunction  is  a  head  of  equity  upon  which  instances 
few  and  far  between  are  to  be  found  before  Lord  Eldon's  time.  Lord  Thurlow 
would  hardly  grant  an  injunction  where  the  parties  had  a  remedy  at  law. 
Before  his  time  there  are  not  more  than  half  a  dozen  instances  of  each 
species  of  injunction,  and  in  these  relief  was  as  often  denied  as  granted. 
Now,  injunction  is,  it  is  well  known,  the  right  arm  of  the  court,  pervading  the 
workshop  of  the  artisan,  entering  alike  into  the  miner's  shaft  and  the  mer- 
chant's counting  house.'  "    Kerley,  Hist.  Eq.  p.  258. 

is  Story,  Eq.  Jur.  §  875;  Adams,  Eq.  p.  195. 

i*  Story,  Eq.  Jur.  §  875;  Sanders  v.  Metcalf,  1  Tenn.  Ch.  419;  Piatt  v. 
Woodruff,  61  N.  Y.  378. 


292  EQUITABLE    REMEDIES.  [Ch.    13 

linns  rest  on  the  refusal  or  inability  of  common-law  courts  to  con- 
sider equitable  defenses,  it  follows  that  the  relief  will  not  be  granteu 
upon  grounds  of  which  the  person  aggrieved  might  have  availed  him- 
self in  an  action  at  law,  and  in  all  such  cases  the  parties  will  be  left 
to  defend  at  law.15 

Courts  of  equity  did  not,  however,  confine  themselves  to  restrain 
the  prosecution  of  actions  at  law,  but  at  a  very  early  day  the  chan- 
cellor claimed  the  right  to  arrest  the  fruits  of  an  unconscionable  judg- 
ment rendered  by  courts  of  law.  The  common-law  judges  refused 
from  the  first  to  bow  to  these  injunctions,  and  they  asserted  the  right 
to  release  on  habeas  corpus  suitors  in  their  courts  who  had  been  im- 
prisoned for  contempt  in  violating  such  injunctions.16  In  the  cele- 
brated case  of  the  Earl  of  Oxford,17  decided  during  the  reign  of  King 
James  I.,  Lord  Chancellor  Ellesmere  stated  the  rule  to  be:  "^Vhere 
a  judgment  is  obtained  by  oppression,  wrong,  and  a  hard  conscience, 
the  chancellor  will  frustrate  and  set  it  aside,  not  for  any  error  or  de- 
fect in  the  judgment,  but  for  the  hard  conscience  of  the  party."  Soon 
after  this  decision,  the  common-law  judges,  led  by  Lord  Coke,  made 
an  ineffectual  attempt  to  put  an  end  to  the  chancellor's  interference 
with  their  judgment;  but,  on  appeal  to  the  king,  the  question  was 
finally  settled  in  favor  of  the  chancery  jurisdiction.18 

is  New  York  Dry-Dock  Co.  v.  American  L.  I.  &  T.  Co.,  11  Paise,  3S4; 
Palmer  v.  Hayes,  93  Ind.  ISO;  Womack  v.  Powers,  ~>0  Ala.  5;  Palmer  v. 
Gardiner.  77  111.  143:  Dubuque  &  S.  C.  Ry.  Co.  v.  Cedar  Falls  &  M.  Ry.  Co., 
76  Iowa,  702.  39  X.  W.  G91. 

is  Kerley,  Hist.  Eq.  89.  So,  also,  in  Throgmorton  v.  Finch,  3  Inst.  124.  4 
Inst.  8G,  cited  Cro.  Jac.  344,  the  common-law  judges  resolved  that  after  judg- 
ment at  law  there  could  be  no  relief  in  equity. 

i-  2  White  &  T.  Lead.  Cas.  Eq.  111. 

is  Shortly  after  the  decision  in  the  Earl  of  Oxford's  Case,  an  injunction  was 
issued  to  stay  proceedings  on  a  judgment  obtained,  it  was  said,  by  the  plain- 
tiff inveigling  the  defendant's  witnesses  into  an  alehouse  while  the  hearing 
was  uroing  on.  Lord  Ellesmere  was  ill  at  the  time,  and  it  was  thought  un- 
likely that  he  would  recover.  The  common-law  judges  seized  this  oppor- 
tunity, and  Lord  Coke  advised  the  plaintiff's  attorney  to  indict  the  defendant, 
his  counsel,  and  all  concerned  in  obtaining  the  injunction,  of  a  praemunire, 
under  27  Edw.  III.,  for  impeaching  a  judgment;  and  in  the  following  term  he 
persuaded  Choke,  J.,  in  charging  the  grand  jury,  to  tell  them  to  inquire, 
among  other  things,  of  such  persons  as  questioned  judgments  by  bill,  and  he 
himself  strongly  pressed  the  jury  to  lind  true  bills  against  one  such  person;  but 


Ch.    11]  INJUNCTIONS    AGAINST    PROCEEDINGS    AT    LAW.  293 

The  right  to  an  injunction  against  a  judgment  is  determined  by 
the  following  rules:  (1)  If,  after  judgment,  additional  circumstan- 
ces are  discovered,  not  cognizable  at  law,  but  converting  the  contro- 
versy into  matter  of  equitable  jurisdiction,  the  court  of  chancery 
will  interfere.  (2)  Even  though  the  circumstances  so  discovered 
would  have  been  cognizable  at  law  if  known  in  time,  yet,  if  their 
nondiscovery  has  been  caused  by  fraudulent  concealment,  the  fraud 
will  warrant  an  injunction.  (3)  But  if  the  newly-discovered  facts 
would  have  been  cognizable  at  law,  and  there  have  been  no  fraud- 
ulent concealments,  the  mere  fact  of  their  late  discovery  does  not 
give  a  right  to  injunctive  relief;  and  still  less  so  if  the  facts  were 
known  at  the  time  of  the  trial,  and  the  grievance  complained  of  has 
been  caused  either  by  a  mistake  in  pleading  or  other  mismanage- 
ment, or  by  a  supposed  error  in  the  judgment  of  the  court.19 

they,  having  a  wholesome  fear  that  to  be  employed  as  a  weapon  in  the  con- 
test between  the  chancellor  and  the  chief  justice  would  bring  but  little  profit 
and  much  danger,  altogether  declined  to  follow  his  advice.  The  chief  justice, 
moreover,  announced  that  any  counsel  who  signed  a  bill  praying  an  inquiry 
into  the  circumstances  of  a  judgment  would  find  his  mouth  closed  forever 
in  the  common-law  courts,  an  even  more  severe  measure  than  the  imprison- 
ment by  which  a  barrister  in  Elizabeth's  reign  had  been  driven  to  humble 
apologies  for  the  same  offense,  for,  until  centuries  afterwards,  there  was 
no  separate  chancery  bar.  The  lord  chancellor  appealed  to  the  king,  and 
the  matter  was  referred  to  Bacon  (then  attorney  general)  and  other  lawyers. 
They  reported  in  favor  of  the  chancery  jurisdiction,  on  the  ground  that  it  had 
been  exercised  for  a  long  time;  and  the  question  was  accordingly  settled  in 
the  chancellor's  favor.    Kerley,  Hist.  Eq.  113,  114. 

is  Adams,  Eq.  p.  197;  Bateman  v.  Willoe,  1  Schoales  &  L.  201;  Harrison  v. 
Nettleship,  2  Mylne  &  K.  423;  Taylor  v.  Sheppard,  1  Younge  &  C.  Ex.  271;  In 
Hendrickson  v.  Hinckley,  17  How.  (U.  S.)  443,  445,  Mr.  Justice  Curtis  stated 
the  principle  as  follows:  "A  court  of  equity  does  not  interfere  with  judg- 
ments at  law,  unless  the  complainant  has  an  equitable  defense,  of  which  he 
could  not  avail  himself  at  law,  because  it  did  not  amount  to  a  legal  defense,  or 
had  a  good  defense  at  law  of  which  he  was  prevented  from  availing  himself 
by  fraud  or  accident,  unmixed  with  negligence  of  himself  or  agents."  See, 
to  same  effect,  Phillips  v.  Pullen,  45  N.  J.  Eq.  5,  16  Ati.  9;  Nevins  v.  McKee, 
61  Tex.  412;  Headley  v.  Bell,  84  Ala.  346,  4  South.  391;  Darling  v.  Mayor, 
51  Md.  1;  Knox  Co.  v.  Harsham,  133  U.  S.  152,  10  Sup.  Ct.  257;  Warner  v. 
Conant,  24  Vt.  351;  Danaher  v.  Prentiss,  22  Wis.  311.  Ignorance  or  mistake 
of  party's  own  counsel  does  not  authorize  injunction  against  judgment,  Ham- 
brick  v.  Crawford,  55  Ga.  335;   Brownson  v.  Reynolds,  77  Tex.  254,  13  S.  W. 


294  EQUITABLE    REMEDIES.  [Ch.    13 

In  modern  times,  the  enlarged  powers  of  courts  of  common  law 
to  grant  new  trials  for  errors  and  mistakes  occurring  during  the  trial 
has  rendered  equitable  interference  with  judgments  of  rare  occur- 
rence, except  where  tainted  with  fraud ;  and  in  this  respect  the  court 
proceeds  on  the  principles  which  govern  it  in  setting  aside  deeds 
and  other  contracts  for  fraud  and  mistake.20 

In  England,  and  in  all  the  states  of  this  country  which  have 
adopted  the  code  procedure,  injunctions  against  the  prosecutions  of 
actions  nl  law  have  also  become  infrequent,  since  defendant  may 
in  the  legal  action  avail  himself  of  any  equitable  defense  he  may 
have;  and,  as  a  rule,  the  jurisdiction  is  exercised  only  to  prevent 
multiplicity  of  suits,  and  to  prevent  interference  with  the  jurisdic- 
tion of  a  court  of  equity  after  it  has  once  attached.21 


INJUNCTIONS   RELATING  TO    CONTRACTS. 

189.  An  injunction  will  issue  against  the  breach  of  a 
negative  contract  where  such  breach  will  result  in  irrep- 
arable injury,  not  capable  of  being  adequately  compen- 
sated in  damages. 

An  injunction  against  the  breach  of  a  negative  contract  is  equiva- 
lent to  its  specific  performance,  and  it  has  sometimes  been  stated 
that  the  jurisdiction  to  enjoin  the  breach  of  such  contract  is  coexten- 
sive with  the  power  to  compel  specific  performance.  It  is  true  that, 
in  all  cases  where  specific  performance  can  be  decreed,  the  jurisdic- 
tion by  injunction  will  attach  as  matter  of  course;  but  it  is  not  con- 

986;  Vaughan  v.  Hewitt,  17  S.  C.  442;  nor  error  of  court  during  trial,  since 
there  is  a  remedy  by  appeal,  Cassel  v.  Scott,  17  Ind.  514;  Reynolds  v.  Horine, 
13  B.  Mon.  234;  Vaughn  v.  Johnson,  9  N.  J.  Eq.  173. 

203  Pom.  Eq.  Jur.  §  1365.  Fraud  practiced  by  successful  party  is  ground 
for  injunction  against  judgment.  Greenwaldt  v.  May,  127  Ind.  511,  27  N.  E. 
158;  Gates  v.  Steele,  58  Conn.  316,  20  Atl.  474;  Taylor  v.  Nashville  &  C.  R. 
Co.,  86  Tenn.  228,  6  S.  W.  393;  Wagner  v.  Shank,  59  Md.  313;  Murphy  v. 
Smith,  86  Mo.  333. 

21  3  Pom.  Eq.  Jur.  §§  1370-1374;  Wood  v.  Swift,  81  N.  Y.  31;  Platto  v.  Deus- 
ter,  22  Wis.  482;    Revalk  v.  Kraemer,  8  Cal.  66. 


Ch.    13]  INJUNCTIONS    RELATING    TO    CONTRACTS.  295 

fined  to  such,  cases,22  and  will  be  exercised  in  all  cases  where  it  can 
operate  to  bind  men's  consciences,  as  far  as  they  can  be  bound,  to  a 
true  and  literal  performance  of  their  agreement.23  The  test,  how- 
ever, which  determines  the  right  to  an  injunction  for  breach  of  con- 
tract is  the  absence  of  an  adequate  remedy  at  law,  and  the  fact  that 
the  damages  are  not  susceptible  of  proper  assessment  by  the  jury.24 

Among  the  classes  of  contracts  which  equity  will  protect  by  way 
of  injunction  are  the  following: 

1.  Whenever  a  covenant  in  a  deed  or  lease  restricts  the  use  to  which 
the  premises  may  be  put, — as  not  to  erect  certain  classes  of  improve- 
ments, or  not  to  use  them  for  the  sale  of  liquor, — an  injunction  will 
issue,  as  a  matter  of  course,  against  its  violation,  not  only  by  the 
original  parties,  but  by  any  subsequent  purchaser  or  assignee  with 
notice.26  In  such  a  case,  it  is  not  for  the  court,  but  for  the  plaintiff, 
to  estimate  the  amount  of  damages  that  arises  from  the  injury  in- 
flicted upon  him.  The  moment  the  court  finds  that  there  has  been 
a  breach  of  covenant,  that  is  an  injury;  and  the  court  has  no  right 
to  measure  it,  and  no  right  to  refuse  to  plaintiff  specific  performance 
of  his  contract  by  way  of  injunction  against  its  breach.26 

2.  Another  class  of  negative  contracts  which  the  court  will  enforce 
by  injunction  are  contracts  in  partial  restraint  of  trade,  where  the 
limitation  is  reasonable.27  A  covenant  not  to  engage  in  business  will 
not,  however,  be  implied  from  a  sale  of  the  business,  or  even  of  the 

22  Singer  Sewing  Mach.  Co.  v.  Union  Buttonhole  Co.,  1  Holmes,  253,  Fed. 
Cas.  No.  12,904;  Steinau  v.  Gas  Co.,  48  Ohio  St.  324,  27  N.  E.  547;  Wolver- 
hampton &  W.  R.  Co.  v.  London  &  N.  W.  R.  Co.,  L.  R.  16  Eq.  433,  438. 

23  Kerr,  Inj.  p.  420;    Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  619. 

24  Beach,  Mod.  Eq.  Jur.  §  768;  Steinau  v.  Gas.  Co.,  48  Ohio  St.  324.  27  N.  E. 
545;  Burdon  Cent.  Sugar  Ref.  Co.  v.  Leverich,  37  Fed.  67;  Bailey  v.  Collins,  59 
N.  H.  459. 

25  See  ante,  103;  Tulk  v.  Moxhay,  2  Phil.  Ch.  777;  Renals  v.  Cowlishaw,  9 
Ch.  Div.  130,  11  Ch.  Div.  866;  Trustees  of  Columbia  College  v.  Thacher,  87 
N.  Y.  311;  Godfrey  v.  Black,  39  Kan.  193.  17  Pac.  849;  Morris  v.  Tuskaloosa 
Manuf'g  Co.,  83  Ala.  565,  3  South.  689;  Gawtry  v.  Leland,  40  N.  J.  Eq.  323. 

26  Per  Jessel,  M.  R.,  in  Leech  v.  Sehweder,  9  Ch.  App.  463,  465. 
27MeClurg's  Appeal,  58  Pa.  St.  51;    Beal  v.  Chase,  31  Mich.  490;    Butler  v. 

Burleson,  16  Vt.  176;  Ropes  v.  Upton,  125  Mass.  258;  Guerand  v.  Dandelet,  32 
Md.  561;  Barret  v.  Blagrave,  5  Ves.  555,  6  Ves.  104.  Some  of  the  later  cases 
have  upheld  contracts  in  restraint  of  trade,  though   unlimited  territorially. 


EQUITABLE    REMEDIES.  [Ch.    13 

good  will ;  and,  unless  there  is  a  restrictive  covenant  in  the  contract 
of  sale,  an  injunction  will  not,  as  a  rule,  issue  to  restrain  the  vendor 
from  carrying  on  the  same  business  in  the  neighborhood.28 

3.  We  have  already  seen  that  equity  will  not  decree  the  specific 
performance  of  a  contract  for  personal  services ; 29  nor  will  it  in- 
directly or  negatively,  by  means  of  an  injunction  restraining  the  vio- 
lation of  a  contract,  compel  the  affirmative  performance  from  day  to 
day,  or  the  affirmative  acceptance,  of  merely  personal  services.30  But 
where  a  contract  for  personal  services,  of  a  special,  unique,  and  ex- 
traordinary character,  contains  a  covenant  not  to  perform  similar 
services  for  any  other  person  during  the  lifetime  of  the  contract, 
an  injunction  will  issue  to  restrain  the  breach  of  the  negative  cove- 
nant. The  leading  case  on  this  subject  is  that  of  Lumley  v.  Wag- 
ner,31 where  defendant  had  entered  into  a  contract  with  plaintiff 
to  sing  at  his  theater  for  three  months,  and  not  to  sing  at  any 
other  theater  during  this  period.  Though  the  agreement  to  sing 
at  plaintiff's  theater  was  of  such  a  nature  that  it  could  not  be 
specifically  enforced  by  decree,  an  injunction  was  issued  to  restrain 
defendant  from  singing  at  a  rival  theater.32 

Breach  of  contract  for  ordinary  personal  services,  not  intellectual 
or  peculiar  or  individual  in  their  character,  will  not  be  thus  re- 
strained, since  the  remedy  at  law  in  damages  is  adequate.33 

Diamond  Match  Co.  v.  Roeber,  106  N.  Y.  473,  13  N.  E.  419;  Leather  Cloth  Co. 
v.  Lorsont,  39  Law  J.  Ch.  86;  Rousillon  v.  Rousillon,  14  Ch.  Div.  351;  High. 
Inj.  §  1174. 

zsCruttwell  v.  Lye.  17  Ves.  335;  Churton  v.  Douglas,  Johns.  Eng.  Ch.  174; 
Close  v.  Flesher  (Com.  PI.  N.  Y.)  28  N.  Y.  Supp.  737.  In  Massachusetts  a  re- 
strictive covenant  is  implied  from  a  sale  of  the  good  will.  Dwight  v.  Hamil- 
ton, 113  Mass.  175. 

29  Ante,  267. 

30  Arthur  v.  Oakes,  63  Fed.  318. 
si  1  De  Gex.  M.  &  G.  616. 

32  See,  also,  Cort  v.  Lassard,  18  Or.  221,  22  Pac.  1054;  Daly  v.  Smith,  49 
How.  Pr.  150;  McCaull  v.  Braham,  16  Fed.  37.  A  negative  covenant  is  some- 
times implied  from  affirmative  stipulations  to  devote  entire  time  to  a  business. 
Duff  v.  Russell,  14  N.  Y.  Supp.  134;  affirmed  on  appeal,  16  N.  Y.  Supp.  958, 
and  again  in  133  N.  Y.  678,  31  N.  E/  622;  Webster  v.  Dillon,  3  Jur.  (N.  S.) 
432. 

33  Wm.  Rogers  Manuf'g  Co.  v.  Rogers,  58  Conn.  356,  20  Atl.  467;  Cort  v. 
Lassard,  18  Or.  221,  22  Pac.  1054;  Burney  v.  Ryle,  91  Ga.  701,  17  S.  E.  986. 


Ch.   13]  INJUNCTIONS    RELATING   TO    TORTS.  297 


INJUNCTIONS   RELATING   TO    TORTS. 

190.  Where  a  legal  right  in  property  exists,  a  violation 
of  that  right  will  be  prohibited  by  injunction  in  all  cases 
where  the  injury  is  such  as  is  not  susceptible  of  being  ad- 
equately compensated  in  damages,  or,  at  least,  not  with- 
out the  necessity  of  a  multiplicity  of  actions  for  that  pur- 
pose; but  an  injunction  will  not  be  granted  where  the 
injury  is  trivial  in  amount,  or  where  the  court,  in  its  dis- 
cretion, considers  that  damages  should  alone  be  given.34 

By  far  the  most  important  class  of  injunctions  at  the  present  time 
is  that  dealing  with  wrongs  independent  of  contract.  The  jurisdic- 
tion to  restrain  actions  and  judgments  at  law,  once  so  important,  is 
gradually  becoming  less  so,  owing  to  reasons  heretofore  stated. 
With  respect  to  contracts,  the  usual  equitable  remedy  is  by  way  of 
specific  performance,  and  the  right  to  injunctive  relief  is  limited  to 
a  comparatively  small  class,  chiefly  of  a  negative  character.  With 
respect  to  wrongs  independent  of  contract,  however,  the  restraining 
process  of  equity  extends  throughout  the  whole  range  of  property 
rights  and  duties  recognized  by  municipal  law.35  In  recent  times, 
even  the  time-honored  rule  that  the  jurisdiction  is  exercised  only  to 
protect  rights  in  property  has  been  somewhat  shaken ;  and  the  prin- 
ciple in  the  black-letter  text  is  subject  to  the  qualification  that  there 
is  a  tendency  in  both  English  and  American  courts  to  restrain  by 
injunction  every  species  of  tort  for  which  damages  are  not  an  ade- 
quate remedy,  whether  the  wrong  be  to  property,  person,  or  reputa- 
tion.38 


SAME— GENERAL   PRINCIPLES    GOVERNING    EXERCISE    OF 

JURISDICTION. 

191.  To   entitle  a  complainant  to  an  injunction  against 
the  violation  of  a  legal  right,  he  must,  in  addition  to  the 

34  Underh.  Eq.  p.  209. 

as  Snell,  Eq.  p.  685;   3  Pom.  Eq.  Jur.  §  1338;   Gaslight  &  Coke  Co.  v.  Vestry 
of  St.  Mary  Abbott's,  15  Q.  B.  Div.  1;  Tuchrnan  v.  Welch,  42  Fed.  548,  559. 
36  See  post,  310. 


298  EQUITABLE    RKMEDIES.  [Ch.  13 

inadequacy  of  the  legal  remedy  and  the  irreparable  nature 
of  the  injury,  establish: 

(a)  The  existence  of  the  right  which  he  asserts. 

(b)  An  actual  violation  of  that  right  by  defendant,  or 

a  real  probability  or  danger  of  such  violation. 

To  warrant  the  issuance  of  an  interlocutory  injunction  before  the 
hcaiing  on  the  merits,  the  complainant  must  be  able  to  show  a  fair  pri- 
ma facie  cast-  in  support  of  the  title  which  he  asserts.37  There  should 
be  no  real  doubt  as  to  the  existence  of  plaintiff's  legal  right; 38  and 
there  must  be  some  substantial  grounds  for  doubting  the  existence 
of  the  alleged  legal  right,  the  exercise  of  which  he  seeks  to  prevent.39 
If  the  legal  right  of  complainant  is  not  disputed,  but  the  fact  of  its 
violation  is  denied,  he  must  be  able  to  show  that  the  act  complained 
of  is  an  actual  violation  of  the  right,40  or  is  at  least  an  act  which 
must,  if  carried  into  effect,  result  necessarily  or  inevitably  in  a 
ground  of  action.41  The  mere  prospect  or  apprehension  of  injury, 
or  the  mere  belief  that  the  act  may  or  will  be  done,  is  not  sufficient; 42 
but  if  an  intention  to  do  the  act  complained  of  can  be  shown  to  exist, 
or  if  a  man  insists  on  his  right  to  do,  or  begins  to  do,  or  gives  notice 
of  his  intention  to  do,  an  act  which  must,  in  the  opinion  of  the  court, 
if  completed,  give  a  ground  of  action,  there  is  a  foundation  for  the 
exercise  of  the  jurisdiction.43     After  the  establishment  of  the  con- 

87  Saunders  v.  Smith,  3  Mylne  &  C.  714,  728;  Hilton  v.  Earl  of  Granville, 
Craig  &  P.  283,  292. 

as  National  Docks  R.  Co.  v.  Central  R.  Co.,  32  N.  J.  Eq.  755;  Mammoth  Vein 
Consol.  Coal  Co.'s  Appeal,  54  Pa.  St.  1S3. 

39  Sparrow  v.  Oxford,  W.  &  W.  R.  Co.,  9  Hare,  436,  441. 

40  Imperial  Gaslight  &  Coke  Co.  v.  Broadbent.  7  H.  L.  Cas.  600;  Ripon  v. 
Hobart,  3  Mylne  &  K.  169,  176. 

4i  Haines  v.  Taylor,  10  Beav.  75;  Goodhart  v.  Hyett,  25  Ch.  Div.  190. 

42  Ripon  v.  Hobart,  3  Mylne  &  K.  174;  Haines  v.  Taylor,  10  Beav.  75; 
Lutheran  Church  v.  Mascbop,  10  N.  J.  Eq.  57;  Jenny  v.  Crase,  1  Cranch,  C.  C. 
(U.  S.)  443,  Fed.  Cas.  No.  7,2S5. 

43  Attorney  General  v.  Forbes,  2  Mylne  &  C.  123,  132;  Cooper  v.  Whitting- 
ham,  15  Ch.  Div.  501;  Attorney  General  v.  Acton  Local  Board,  22  Ch.  Div. 
221;  McArter  v.  Keby,  5  Ohio,  139;  Owen  v.  Ford,  49  Mo.  436;  Diedrichs  v. 
Northwestern  Union  R.  Co.,  33  Wis.  219;  East  &  West  R.  Co.  v.  East  Ten- 
nessee, V.  &  G.  R.  Co.,  75  Ala.  275. 


Ch.   13]  INJUNCTIONS    RELATING    TO    TORTS.  299 

troverted  right  on  a  trial  on  the  merits,  and  the  fact  of  its  violation, 
complainant  is  entitled,  as  of  course,  to  a  perpetual  injunction  to  pre- 
vent the  recurrence  of  the  wrong. 


SAME— CLASSES    OF   TORTS    ENJOINED. 

193.  Courts  of  equity  regard  the  legal  remedy  inad- 
equate, and  -will  therefore  interfere  by  injunction — 

(a)  To  protect  real  property  against  certain  torts,  such 

as  "waste,  trespass,  and  nuisance. 

(b)  To   protect  property  rights  in  patents,  copyrights, 

•works  of  literature,  science,  and  art,  and  trade- 
marks. 

(c)  But,  as  a  rule,  an  injunction  "will  not  issue  to  pro- 

tect other  than  property  rights  from  violation, 
unless  a  breach  of  trust,  confidence,  or  contract 
is  also  involved. 

Injuries  to  Real  Property —  Waste. 

Waste  is  a  substantial  injury  to  the  inheritance  done  by  one 
having  a  limited  estate,  either  of  freehold  or  for  years,  during  the 
continuance  of  his  estate.44  The  essential  character  of  waste  is  that 
the  party  committing  it  is  in  rightful  possession,  and  that  there  is 
privity  of  title  between  the  parties.45  The  ground  on  which  equity 
proceeds  in  restraining  waste  is  the  protection  of  the  property  from 
irreparable  injury;  and  an  injunction  will  issue  in  favor  of  the  re- 
mainder-man or  reversioner  against  the  commission  of  any  acts  by 
the  tenant  for  life  or  for  years  amounting  to  legal  waste.46  A  mort- 
gagor, being  regarded  in  equity  as  the  owner  of  the  land,  may  commit 
waste;  and  an  injunction  will  not  issue  against  him,  unless  it  ap- 
pears that  the  security  is  insufficient,  or  will  be  rendered  insufficient 
by  the  act  complained  of.4T 

**  Co.  Litt.  53a. 

45  Davenport  v.  Davenport,  7  Hare,  222. 

<«  Pulteney  v.  Shelton,  5  Ves.  260,  note;  Brock  v.  Dole,  66  Wis.  142,  28  N. 
W.  334;  Mutual  Life  Ins.  Co.  v.  Bigler,  79  N.  Y.  568;  Watson  v.  Hunter,  5 
Johns.  Ch.  169;   Lavenson  v.  Standard  Soap  Co.,  SO  Cal.  245,  22  Pac.  184. 

47  Moriarty  v.  Ashworth,  43  Minn.  1,  44  N.  W.  531;  Harris  v.  Bannon,  78 
Ky.  568;  Fairbank  v.  Cud  worth,  33  Wis.  358;  King  v.  Smith,  2  Hare,  244. 


300  EQUITABLE    REMEDIES.  [Ch.    13 

Not  only  will  equity  restrain  the  commission  of  legal  waste  by  the 
tenant  of  the  particular  estate,  but  it  will  also  restrain  what  is 
known  as  equitable  waste.  Thus,  where  the  estate  of  a  tenant  for 
life  or  for  years  is  declared  by  the  instrument  creating  it  to  be  "with- 
out impeachment  of  waste,"  courts  of  law  will  never  interfere; 48  but 
equity  will  control  him  in  the  exercise  of  the  power,  on  the  ground 
that  it  will  not  permit  an  unconscientious  use  to  be  made  of  a  legal 
power.49  In  the  leading  case,  a  tenant  for  life  without  impeach- 
ment of  waste,  who  was  proceeding  to  pull  down  the  mansion  house, 
was  enjoined  at  the  suit  of  the  remainder-man.50 

Trespass. 

The  jurisdiction  of  a  court  of  equity  to  grant  injunctions  against 
trespass  is  comparatively  of  modern  origin.  The  court  for  a  long 
time  confined  relief  in  equity  to  waste,  founding  its  interference  on 
the  privity  of  title  between  the  parties.51  The  rigor  of  the  old  rule 
in  confining  relief  in  equity  to  waste  was  relaxed  for  the  first  time 
by  Lord  Thurlqw,  in  a  case  where,  the  plaintiff  being  in  possession 
of  a  close,  a  wrongdoer  was  working  into  his  minerals,  and  taking 
away  the  very  substance  of  his  estate.52  The  foundation  for  the  juris- 
diction is  the  inadequacy  of  the  legal  remedy,53  either  (1)  because  of 
the  irreparable  nature  of  the  injury  caused  by  a  single  act  of  tres- 
pass,54 or  (2)  because  of  the  necessity  for  a  multiplicity  of  suits 
caused  by  continued  and  repeated  trespasses.55 

«  Bowies'  Case,  11  Coke,  81b. 

49  Micklethwait  v.  Micklethwait,  1  De  Gex  &  J.  504,  524;  Hawley  v.  Clowes, 
2  Johns.  Ch.  122. 

so  Lord  Bernard's  Case,  Finch,  Prec.  Ch.  454,  2  Vern.  738. 

5i  Davenport  v.  Davenport,  7  Hare,  217. 

62  Flamang's  Case,  cited  6  Ves.  147,  7  Ves.  305,  308,  18  Ves.  184. 

B3  Silva  v.  Garcia,  65  Cal.  591,  4  Pac.  628;  Frink  v.  Stewart,  94  N.  C.  484; 
Smith  v.  City  of  Oconomowoc,  49  Wis.  694,  6  N.  W.  329;  Mulry  v.  Norton,  100 
N.  Y.  424,  3  N.  E.  581.  Fugitive  or  temporary  trespass,  such  as  removal  of 
fence,  will  not  be  enjoined.  Minnig's  Appeal,  82  Pa.  St.  373;  Jordan  v. 
Lanier,  73  N.  C.  90. 

s*  Removal  of  ore  from  mines  by  a  trespasser,  going  to  the  destruction  of 
Inheritance,  will  be  enjoined.     Anderson  v.  Harvey,  10  Grat.  386;   Cheesman  v. 

65  Mussleman  v.  Marquis,  1  Bush.  (Ky.)  463;  Lembeck  v.  Nye,  47  Ohio  St. 
336,  24  N.  E.  6S6;  Warren  Mills  v.  New  Orleans  Seed  Co.,  65  Miss.  391,  4  South. 


Ch.  13]  injunctions  relating  to  torts.  301 

Injuries  to  Real  Property — Nuisance. 

A  nuisance,  as  distinguished  from  a  trespass,  is  an  act,  not  in 
itself  an  invasion  of  property,  which  causes  a  substantial  injury  to 
the  corporeal  and  incorporeal  hereditaments  of  other  persons.  In 
the  case  of  trespass  it  is  the  immediate  act  which  causes  the  injury, 
while  in  the  case  of  nuisance  the  injury  is  the  consequence  of  an 
act  done  beyond  the  bounds  of  the  property  affected  by  it.56  A  nui- 
sance may  be  either  of  a  private  or  a  public  nature.  The  distinction 
between  the  two  is  that  a  private  nuisance  is  an  injury  to  the  prop- 
erty of  an  individual,  while  a  public  nuisance  is  an  injury  to  the 
property  of  all  persons  who  come  within  the  sphere  of  its  opera- 
tion.57 The  usual  remedy  for  a  public  nuisance  is  a  criminal  prosecu- 
tion brought  by  the  sovereign  power;   and,  if  a  prosecution  in  the 

Shreve,  37  Fed.  36;  Silva  v.  Rankin,  80  Ga.  79,  4  S.  E.  756;  West  Point  Iron 
Co.  v.  Rey  inert,  45  N.  Y.  703;  Richards  v.  Dower,  64  Cal.  62.  28  Pac.  113; 
Hammond  v.  Winchester,  82  Ala.  470,  2  South.  892.  Cutting  timber  for  which 
land  is  chiefly  valuable,  Fulton  v.  Harman,  44  Md.  251;  Thatcher  v.  Humble, 
67  Ind.  444;  Powell  v.  Cheshire,  70  Ga.  357;  interference  with  burial  ground, 
Mooney  v.  Cooledge,  30  Ark.  640.  An  attempt  to  enter  upon  and  take  posses- 
sion of  land  for  public  use  without  the  assent  of  the  owner,  and  without  the 
damages  having  been  ascertained  or  paid  or  tendered,  is,  or  would  be  if  con- 
summated, in  the  nature  of  an  irreparable  injury  for  the  prevention  of  which 
injunction  is  the  proper  remedy.  Uren  v.  Walsh,  57  Wis.  98,  14  N.  W.  902; 
Church  v.  Joint  School  Dist.  No.  12,  55  Wis.  399,  13  N.  W.  272. 

298;  Wheelock  v.  Noonan,  108  N.  Y.  179,  15  N.  E.  67;  Ladd  v.  Osborne,  79 
Iowa,  93,  44  N.  W.  235;  Wilson  v.  Hill,  46  N.  J.  Eq.  369,  19  Atl.  1097;  Galway 
v.  Metropolitan  El.  R.  Co.,  128  N.  Y.  132,  28  N.  E.  479;  Port  of  Mobile  v. 
Louisville  &  N.  R.  Co.,  84  Ala.  115,  4  South.  106.  Some  of  the  cases  hold  that 
there  must  be  several  persons  controverting  the  same  right,  and  each  standing 
on  his  own  claim  or  pretension.  John  A.  Roebling  Sons'  Co.  v.  First  Nat. 
Bank,  30  Fed.  744;  Carney  v.  Hadley  (Fla.)  14  South.  4,  7;  Thorn  v.  Sweeney, 
12  Nev.  251;  Nicodemus  v.  Nicodemus,  41  Md.  529.  Repeated  trespasses  no 
ground  for  injunction  if  multiplicity  of  suits  not  necessary  to  put  an  end  to 
them.  For  example,  an  intruder  into  plaintiff's  factory,  under  a  claim  of  right 
so  to  do,  may  be  ejected  by  force,  and  hence  injunction  denied.  Mechanics' 
Foundry  v.  Ryall,  75  Cal.  601,  17  Pac.  703.  See,  also,  ante,  15,  "Multiplicity 
of  Suits." 

se  Kerr,  Inj.  p.  106;  High,  Inj.  §  739. 

bt  Attorney  General  v.  Sheffield  Gas  Co.,  3  De  Gex,  M.  &  G.  320;  Soltau  v. 
De  Held,  2  Sim.  (N.  S.)  142;   Lansing  v.  Smith,  8  Cow.  (N.  Y.)  146. 


302  EQUITABLE    REMEDIES.  [Ch.    13 

ordinary  tribunals  does  not  afford  an  adequate  relief,  the  attorney 
general  may  resort  to  equity  to  enjoin  its  maintenance.68  A  private 
individual  cannot  enjoin  a  public  nuisance,  unless  he  sustains  some 
special,  direct,  and  substantial  damage  thereby,  over  and  above  the 
general  damage  sustained  by  the  rest  of  the  public.59 

In  the  case  of  a  private  nuisance  the  injured  person  has  a  per- 
sonal right  to  a  civil  action  for  its  redress,  though  it  is  not  in  every 
case  that  he  will  be  entitled  to  the  special  remedy  by  injunction. 
If  the  case  made  out  is  such  that  the  recovery  of  damages  will  give 
a  full  and  adequate  compensation  for  the  injury,  no  foundation  is  laid 
for  the  interference  of  the  court  by  way  of  injunction.  If,  on  the 
other  hand,  the  injury  is  of  so  material  a  nature  that  it  cannot  be 
well  or  fully  compensated  by  the  recovery  of  damages,  or  be  such 
as  from  its  continuance  and  permanent  mischief  might  occasion  a 
constantly  recurring  grievance,  a  foundation  is  laid  for  the  interfer- 
ence of  the  court  by  way  of  injunction.60  The  principles  which  con- 
trol courts  of  equity  in  enjoining  nuisances  will  perhaps  be  better 
understood  by  considering  some  of  the  cases  most  frequently  occur- 
ring in  practice. 

1.  One  large  class  consists  of  nuisances  to  dwelling  houses  and 
houses  of  business.  To  authorize  the  issuance  of  an  injunction,  there 
must  be  such  a  degree  of  injury  to  the  property  as  interferes  ma- 
cs Attorney  General  v.  Cleaver,  18  Ves.  211;  Attorney  General  v.  Steward, 
21  N.  J.  Eq.  340.  The  remedy  by  injunction  at  suit  of  the  attorney  general  is 
chiefly  applied  to  that  form  of  public  nuisances  known  as  "purprestures" ;  i.  e. 
encroachments  on  highways,  streets,  and  navigable  waters.  People  v.  Vander- 
bilt,  28  N.  Y.  396;  People  v.  New  York  &  S.  I.  F.  Co.,  68  N.  Y.  71;  Attorney 
General  v.  Woods,  108  Mass.  436;  Pennsylvania  v.  Wheeling  &  Belmont  Bridge 
Co.,  13  How.  518.  Inclosure  of  public  domain  by  private  persons  enjoined  as 
purpresture.  U.  S.  v.  Brighton  Ranche  Co.,  26  Fed.  218;  State  v.  Goodnight, 
70  Tex.  686,  11  S.  W.  119. 

ss  Soltau  v.  De  Held,  2  Sim.  (N.  S.)  141;  Cranford  v.  Tyrrell,  128  N.  Y.  341, 
28  N.  E.  514;  Callanan  v.  Gilman,  107  N.  Y.  360,  14  N.  E.  264;  Pearson  v. 
Allen,  151  Mass.  79,  23  N.  E.  731;  Van  Wegenen  v.  Cooney,  45  N.  J.  Eq.  24, 
16  Atl.  689;  Cummings  v.  City  of  St.  Louis,  90  Mo.  259,  2  S.  W.  130;  Hargro 
v.  Hodgdon,  89  Cal.  623,  26  Pac.  1106. 

go  Kerr,  Inj.  p.  166;  Gardner  v.  Newburgh,  2  Johns.  Ch.  162;  McCord  v. 
Iker,  12  Ohio,  388;  Sellers  v.  Parvis  &  Williams  Co.,  30  Fed.  164;  Rouse  v. 
Flowers,  75  Ala.  513;  Mowday  v.  Moore,  133  Pa.  St.  611,  19  Atl.  626;  Carlisle 
v.  Cooper,  21  N.  J.  Eq.  576. 


Ch.    13]  INJUNCTIONS    RELATING    TO    TORTS.  303 

terially  with  its  comfort  and  enjoyment,  either  for  domestic  purposes 
or  purposes  of  business.  The  standard  by  which  to  determine  the 
amount  of  damages  that  calls  for  the  exercise  of  the  equitable  juris- 
diction is  the  comfort  and  enjoyment  in  their  abode  to  which  the  in- 
mates are  reasonably  entitled; 61  and  this  must  be  estimated  accord- 
ing to  the  plain  and  simple  notions  entertained  by  persons  in  or- 
dinary life,  and  not  according  to  those  held  by  persons  accustomed 
to  dainty  habits  of  living.62 

The  enjoyment  of  pure  and  wholesome  air  is  a  right  to  which  the 
owners  of  land  and  the  inmates  of  dwelling  houses  are  of  common 
right  entitled.  Any  act  which  pollutes  or  corrupts  the  air  is,  strictly 
speaking  a  nuisance; 63  but,  inasmuch  as  the  business  of  life  in  cities 
and  populous  neighborhoods  renders  it  impossible  that  the  air  should 
retain  its  natural  state  of  purity,  the  law  does  not  regard  trifling  in- 
conveniences, but  only  regards  inconveniences  which  sensibly  and 
materially  diminish  the  comfort  and  enjoyment  or  value  of  the 
property.64  It  is  not  necessary,  however,  that  impurities  in  the 
air  should  be  injurious  to  health,  but  it  is  sufficient  if  they  cause 
discomfort  and  annoyance  to  persons  of  ordinary  sensibilities.65 

If,  again,  real  damage  or  great  inconvenience  is  occasioned  by  the 
carrying  on  of  a  noisy  trade,  or  otherwise  causing  excessive  noise 

«i  Jackson  v.  Duke  of  Newcastle,  3  De  Gex,  J.  &  S.  284;  Fleming  v.  Hislop, 
11  App.  Cas.  691. 

62  Kerr,  Inj.  p.  192;  Walter  v.  Selfe,  4  De  Gex  &  S.  322;  Cooper  v.  Crabtree, 
20  Ch.  Div.  5S9;  Powell  v.  Bentley  &  G.  Furniture  Co.,  34  W.  Va.  804,  12  S.  B. 
1085;  Dittman  v.  Repp,  50  Md.  516;  Westcott  v.  Middleton,  43  N.  J.  Eq.  478, 
11  Atl.  490. 

63  Aldred's  Case,  9  Coke,  58b. 

64  Kerr,  Inj.  p.  211;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  642; 
Sellors  v.  Local  Board  of  Health,  14  Q.  B.  Div.  92S;  Duncan  v.  Hayes,  22  N. 
J.  Eq.  26;   Rhodes  v.  Dunbar,  57  Pa.  St.  274. 

65  Meigs  v.  Lister,  23  N.  J.  Eq.  199;  Babcock  v.  New  Jersey  Stock- Yard  Co., 
20  N.  J.  Eq.  296.  The  following  are  examples  of  nuisances  causing  impurities 
in  the  air  which  have  been  enjoined.  Erection  of  slaughterhouse,  Bushnell  v. 
Robeson,  62  Iowa,  540,  17  N.  W.  888;  Reichert  v.  Geers,  98  Ind.  73;  rendering 
and  fertilizing  establishments,  Evans  v.  Reading  Chemical  Fertilizing  Co.,  100 
Pa.  St  209,  28  Atl.  702;  City  of  Grand  Rapids  v.  Weiden,  97  Mich.  82,  56  N. 
W.  233;  Peck  v.  Elder,  3  Sandf.  126;  soot,  smoke,  and  noxious  gases,  Sulli- 
van v.  Royer,  72  Cal.  248,  13  Pac.  655;  Campbell  v.  Seaman,  63  N.  Y.  568; 
Cogswell  v.  New  York,  N.  II.  &  H.  R.  Co.,  103  N.  Y.  10,  8  N.  E.  537. 


uU4  EQUITABLE    REMEDIES.  [Ch.    13 

or  vibration,  an  action  may  be  brought,  and  an  injunction  obtained, 
to  prevent  its  continuance.6* 

2.  Another  important  class  of  cases  rests  on  the  right  of  the  land- 
ovvner  to  tlie  subjacent  and  lateral  support  of  his  land  in  its  natural 
state.  The  right  is  not  in  the  nature  of  an  easement;  but,  like  the 
right  to  the  How  of  a  natural  stream  or  of  air,  is  an  incident  to  the 
right  of  the  ordinary  enjoyment  of  property.07  The  landowner  may 
therefore  enjoin  his  neighbor  from  so  digging  out  the  adjacent  soil  as 
to  cause  a  subsidence  of  the  surface  of  his  land.68  The  light  to  the 
support  of  a  building  or  other  artificial  weight  is  of  a  different  nature. 
This  is  not  a  natural  right  of  property,  but  is  an  easement  which  can 
be  acquired  only  by  grant  or  by  prescription  which  presupposes  a 
grant.69 

3.  Another  large  class  which  is  often  enjoined,  consists  of  nui- 
sances affecting  water  rights.  All  acts  done  by  a  man  on  his  own 
land,  whereby  the  rights  of  his  neighbor  in  water  are  injuriously 
affected,  or  whereby  water  becomes  the  cause  of  damage  to  the  land 
of  his  neighbor,  are  considered  as  nuisances  relating  to  water.70  It 
will,  of  course,  be  impossible  to  give  a  particular  account  of  the  vari- 
ous rights  to  water.  They  may  be  conveniently  classified  as  rights 
respecting  quantity  and  rights  respecting  quality. 

The  water  of  permanent  running  streams  and  of  inland  lakes  is 
sacred  to  the  common  use  alike  of  all  riparian  proprietors,  and  this 
right  is  incident  to  the  ownership  of  the  adjacent  soil.  Each  pro- 
prietor may  use  the  water  for  all  reasonable  purposes  as  it  flows 

as  Vibrations  caused  by  machinery-  Dittman  v.  Repp,  50  Md.  516;  Hen- 
nessey v.  Carmony  (N.  J.  Ch.)  25  Atl.  374;  Demarest  v.  Hardham,  34  N.  J. 
Eq.  409;  but  not  if  located  in  manufacturing  district,  Straus  v.  Barnett,  140 
Pa.  St.  Ill,  21  Atl.  253;  skating  rink  near  dwelling  house,  Snyder  v.  Cabell, 
20  W.  Va.  48,  1  S.  E.  241;  ringing  bells,  Soltau  v.  De  Held,  2  Sim.  (N.  S.)  133; 
Davis  v.  Sawyer,  133  Mass.  2S9;  keeping  horses  in  stable  near  dwelling  house, 
Ball  v.  Ray,  8  Ch.  App.  4G7;  house  of  ill  fame  near  dwelling,  Hamilton  v. 
Whitridge,  11  Md.  128;  Marsan  v.  French,  Gl  Tex.  173;  Cranford  v.  Tyrrell, 
128  N.  Y.  341,  28  N.  E.  514. 

67  Backhouse  v.  Bonomi,  9  H.  L.  Cas.  512;  Dalton  v.  Angus,  G  App.  Cas.  809. 

es  Trowbridge  v.  True,  52  Conn.  190. 

69  Hunt  v.  Peake,  Johns.  Eng.  Ch.  710;  TunstaU  v.  Christian,  80  Va.  1;  City 
of  Quincy  v.  Jones,  76  111.  231;   Charles  v.  Rankin,  22  Mo.  566. 

to  Kerr,  Inj.  p.  236;   Ballard  v.  Tomlinson,  29  Ch.  Div.  115. 


Ch.   13]  INJUNCTIONS    RELATING   TO    TORTS.  305 

through  or  by  his  land;  but  he  must,  after  its  use,  return  it  without 
substantial  diminution  or  change  in  quantity  to  its  natural  bed  or 
channel  before  it  leaves  his  own  land,  so  that  it  will  reach  his  adja- 
cent proprietor  in  its  full,  original,  and  natural  condition.71  He  may 
therefore  be  restrained  from  diverting  the  stream,  or  materially 
diminishing  the  quantity  which  would  naturally  flow  to  his  neigh- 
bors below; 72  or,  on  the  other  hand,  from  damming  back  the  stream, 
so  as  to  cause  an  overflow  on  the  land  of  his  neighbor  above  him.73 

A  riparian  owner  has  also  the  right  to  the  flow  of  the  stream  in  a 
natural  state  of  purity,  and,  where  the  violation  of  the  right  is  con- 
tinuous, he  may  restrain  the  fouling  of  the  water  without  proof  of 
actual  injury.74 

7i  Pom.  Water  Rights,  §  4.  Heath  v.  Williams,  25  Me.  209;  Tyler  v.  Wil- 
kinson, 4  Mason,  397,  Fed.  Cas.  No.  14.312;  Pugh  v.  Wheeler.  2  Dev.  &  B.  55. 
Owing  to  necessities  of  mining,  a  departure  was  made  in  California  and  other 
Pacific  states;  and  the  doctrine  is  there  settled,  in  opposition  to  the  common 
law,  that  a  permanent  right  of  property  in  the  water  of  streams  and  inland 
lakes  may  be  acquired  by  a  mere  prior  appropriation;  that  a  prior  appropria- 
tor  may  thus  acquire  the  right  to  divert,  use,  and  consume  a  quantity  of  water, 
from  the  natural  flow  or  condition  of  such  streams  or  lakes,  which  may  be 
necessary  for  his  mining  operations;  and  that  he  becomes,  so  far  as  he  has 
thus  made  an  actual  prior  appropriation,  the  owner  of  the  water  as  against 
all  the  world.  This  doctrine,  applied  at  first  to  the  operation  of  mining,  has 
been  extended  to  all  other  beneficial  purposes  for  which  water  may  be  essen- 
tial.—to  milling,  manufacturing,  and  municipal  purposes.  Pom.  Water  Rights, 
§  15. 

72  Ferrand  v.  Corporation  of  Bradford,  21  Beav.  412;  Wright  v.  Moore,  38 
Ala.  593;  Morrill  v.  St.  Anthony  Falls  Water-Power  Co.,  26  Minn.  222,  2  N. 
W.  S42;  Lawson  v.  Wooden-Ware  Co.,  59  Wis.  393,  18  N.  W.  440;  Gardner  v. 
Newburgh,  2  Johns.  Ch.  162;  Burden  v.  Stein,  27  Ala.  104.  So,  also,  an  upper 
riparian  owner  wall  be  enjoined  fx*om  changing  the  course  of  a  stream  so  as 
to  materially  increase  its  current,  to  the  detriment  of  a  lower  proprietor.  Kay 
v.  Kirk,  76  Md.  41,  24  Atl.  326. 

73  Bemis  v.  Upham,  13  Pick.  169;  Stone  v.  Roscommon  Lumber  Co.,  59  Mich. 
24,  26  N.  W.  216;  Learned  v.  Hunt,  63  Miss.  373;  Minor  v.  De  Vaughn,  T? 
Ga.  208;  McCormick  v.  Horan,  81  N.  Y.  86.  Statutes  in  many  of  the  states 
provide  for  the  condemnation  of  land  to  be  overflowed  by  the  erection  of  mill- 
dams. 

74  Merrifield  v.  Lombard,  13  Allen,  16;  Holsman  v.  Boiling  Spring  Co.,  14 
N.  J.  Eq.  335;  Mayor,  etc.,  of  Baltimore  v.  Warren  Manuf'g  Co.,  59  Md.  96, 
110;  Richmond  Manuf'g  Co.  v.  Atlantic  De  Laine  Co.,  10  R.  I.  106;  Indianapo- 
lis Water  Co.  v.  American  Strawboard  Co.,  57  Fed.  1000;   Satterfield  v.  Rowan, 

eq.jtjr. — 20 


30G  EQUITABLE    REMEDIES.  [Ch.   13 

4.  It  must  suffice  to  mention  other  extensive  classes  of  nuisances 
which  will  be  enjoined,  if  they  result  in  irreparable  injury  to  private 
individuals;  for  instance,  obstruction  of  public  highways  and  private 
rights  of  way,  of  navigable  water  by  bridges,  and  of  easements  of 
light  and  air.  Before  dismissing  this  subject,  however,  it  should  be 
noted  that  a  series  of  recent  decisions  has  established  the  principle 
that  the  owner  of  a  lot  abutting  on  a  public  street  in  a  city  has, 
as  appurtenant  to  the  lot,  and  independent  of  the  ownership  of  the 
fee  in  the  street,  an  easement  in  the  street  to  its  full  width,  in  front 
of  his  lot,  for  the  purposes  of  access,  light,  and  air,  which  constitutes 
property,  and  which  cannot  be  taken  from  him  for  public  use  without 
compensation;  and  therefore  he  may  enjoin  the  construction  and 
operation  of  an  elevated  railroad  in  the  street,  though  authorized 
by  the  proper  authorities,  unless  compensation  is  made  for  the  tak- 
ing.75 

Protection  of  Patents,  Copyrights,  Literary  Property,  and  Trade-Marks. 

Patents  and  copyrights  are  in  themselves  fully  recognized  at  law, 
and  an  action  at  law  for  damages  could  always  be  maintained  for 
their  infringement.76  But  it  is  evident  that  such  a  remedy  supplies 
an  exceedingly  inadequate  protection.  Not  only  might  the  patentee 
or  author  be  compelled  to  bring  innumerable  actions,  and  thus  be 
ruined  by  interminable  litigation,  but  in  many  cases  damages,  even  if 
recovered,  would  afford  an  insufficient  redress  for  the  injury  sus- 
tained. The  business  or  the  reputation  might  be  impaired  by  the 
interference,  pending  the  litigation,  in  a  manner  and  to  an  extent 

83  Ga.  187,  9  S.  E.  677.  Against  deposit  of  sewage,  Village  of  Dw'ight  v. 
Hayes,  150  111.  273,  37  N.  E.  218;  Attorney  General  v.  Leeds  Corp.,  5  Ch.  App. 
583;  Oldaker  v.  Hunt,  6  De  Gex,  M.  &  G.  376. 

75  Story  v.  New  York  El.  R.  Co.,  90  N.  Y.  122;  Lahr  v.  Metropolitan  El.  Ry. 
Co.,  104  N.  Y.  268,  10  N.  E.  528.  The  New  York  court  of  appeals  has  refused 
to  apply  this  principle  to  the  case  of  an  ordinary  "surface"  railroad,  Fobes 
v.  Rome.  W.  &  O.  R.  Co.,  121  N.  Y.  505,  24  N.  E.  919;  but  it  has  been  so  applied 
by  the  supreme  court  of  Minnesota,  Adams  v.  Chicago,  B.  &  N.  R.  Co.,  39  Minn. 
2S6,  39  N.  W.  629;  Lamm  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  45  Minn.  71, 
47  N.  W.  455. 

76  Action  on  the  case  is  the  proper  legal  action.  Walk.  Pat.  §  418  et  seq.; 
Stein  v.  Goddard,  1  McAll.  (U.  S.)  82,  Fed.  Cas.  No.  13,353;  Byam  v.  Bullard, 
1  Curt.  (U.  S.)  100,  Fed.  Cas.  No.  2,262. 


Cll.   13]  INJUNCTIONS    RELATING    TO    TORTS.  307 

which  no  inquiry  could  ascertain."  And,  further,  the  facility  for 
taking  accounts  afforded  by  equity,  and  yet  more  conspicuously  its 
power  of  peremptorily  stopping  the  infringement  of  the  right  by  in- 
junction, plainly  indicates  the  appropriateness  of  the  jurisdiction  of 
the  court  for  dealing  with  such  matters.78 

1.  The  federal  courts  are  the  only  tribunals  that  have  jurisdiction 
of  questions  directly  affecting  the  validity  or  infringement  of  pat- 
ents.79 To  warrant  the  issue  of  a  preliminary  injunction,  plaintiff 
must  show  both  a  prima  facie  title  to  the  patent  and  a  prima  facie 
case  of  infringement.80  If  the  validity  of  plaintiff's  patent  was  de- 
nied, a  trial  at  law  was  required  by  the  earlier  English  decisions, 
unless  plaintiff  had  been  in  the  exclusive  enjoyment  for  so  long  a 
period  as  to  give  rise  to  presumption  of  exclusive  right.81  The  fed- 
eral courts,  however,  sitting  in  equity,  hear  the  cause  on  the  merits, 
and  decide  the  question  of  validity  and  infringement,  without  any 
trial  at  law,82  though  they  may,  in  their  discretion,  submit  issues  to 
a  jury83 

2.  A  copyright  is  defined  as  the  exclusive  right  of  multiplying  a 
work  of  literature  after  its  publication.84  It  is  now  established  that 
a  copyright  exists  only  by  statute.85  Before  publication,  an  author 
has  at  common  law  a  property  right  in  his  manuscript  which  will 

"  Smith,  Pr.  Eq.  p.  730;  Hogg  v.  Kirby,  8  Ves.  223;  2  Story,  Eq.  §  930. 

78  Smith,  Pr.  Eq.  p.  730;   Root  v.  Railway  Co.,  105  U.  S.  189. 

™parkhurst  v.  Kinsman,  6  N.  J.  Eq.  GOO;  Dudley  v.  Mayhew,  3  N.  Y.  9; 
Slemmer's  Appeal,  58  Pa.  St.  155;   Gaines  v.  Fuentes,  92  U.  S.  17. 

so  High,  Inj.  §  938;  Standard  Paint  Co.  v.  Reynolds,  43  Fed.  304;  Potter  v. 
Whitney,  1  Lowell  (U.  S.)  87,  Fed.  Cas.  No.  11,341;  Parker  v.  Sears,  1  Fish. 
Pat.  Cas.  93,  Fed.  Cas.  No.  10J4S;  American  Fire  Hose  Manuf'g  Co.  v.  Cor- 
nelius Callahan  Co.,  41  Fed.  50. 

si  Hill  v.  Thompson,  3  Mer.  622;   Caldwell  v.  Vanvlissengen,  9  Hare,  424. 

82  McCoy  v.  Nelson,  121  U.  S.  487,  7  Sup.  Ct.  1000;  Wise  v.  Grand  Ave.  R. 
Co.,  33  Fed.  277;  Buchanan  v.  Howland,  2  Fish.  Pat.  Cas.  341,  Fed.  Cas.  No. 
2,074. 

83  Wise  v.  Grand  Ave.  R.  Co.,  33  Fed.  277;  Sickles  v.  Gloucester  Manuf'g 
Co.,  1  Fish.  Pat.  Cas.  222,  Fed.  Cas.  No.  12,841;  Sanders  v.  Logan,  2  Fish. 
Pat.  Cas.  1G7,  Fed.  Cas.  No.  12,295. 

84Jefferys  v.  Boosey,  4  H.  L.  Cas.  833;  Stephens  v.  Cady,  14  How.  530; 
Baker  v.  Selden,  101  U.  S.  99. 

ss  Jefferys  v.  Boosey,  4  H.  L.  Cas.  833;  Wheaton  v.  Peters,  8  Pet.  U.  S.  591; 
Clemens  v.  Belford,  14  Fed.  728. 


308  EQUITABLE    REMEDIES.  [Ch.    13 

be  protected  by  courts  of  equity;  but,  by  a  publication,  be  dedicates 
it  to  the  public,  and  loses  bis  property  rights,  unless  he  complies  with 
the  copyright  laws.86  The  federal  courts  have  exclusive  jurisdic- 
tion as  to  all  matters  pertaining  to  statutory  copyrights.87 

3.  The  author  of  an  unpublished  work  of  literature,  science,  or  art 
is,  of  course,  entitled  to  an  injunction  against  its  unauthorized  pub- 
lication by  others,  whether  he  does  or  does  not  intend  to  seek  profit 
by  future  publication.88  The  same  principle  applies  to  private  let- 
ters, whether  on  literary  subjects,  or  on  matters  of  private  business, 
personal  friendship,  or  family  concerns.  The  writer  of  private  let- 
ters has  such  a  qualified  right  of  property  in  them  as  will  entitle 
him  to  an  injunction  to  restrain  their  publication  by  the  person  writ- 
ten to,  or  his  assignees;89  and  the  person  written  to  has  such  a 
qualified  right  of  property  in  the  letters  as  will  entitle  him  or  his 
personal  representatives  to  restrain  their  publication  by  a  stranger.90 

As  regards  lectures,  persons  admitted  as  pupils  or  otherwise  to 
hear  them  cannot  publish  them  for  profit,  and  will  be  restrained  from 
so  doing; 91  and,  though  they  have  been  partly  published  by  the  lec- 

se  Bartlett  v.  Crittenden.  5  McLean,  32,  Fed.  Cas.  No.  1,076;  Carte  v.  Duff, 
25  Fed.  183;   Clemens  v.  Beiford,  14  Fed.  728. 

87  Drone,  Copyr.  545. 

88  Prince  Albert  v.  Strange,  1  Macn.  &  G.  42;  Grigsby  v.  Breckinridge,  2 
Bush  (Ky.)  480;  Taige  v.  Banks,  13  Wall.  608.  The  leading  case  on  the  sub- 
ject is  Prince  Albert  v.  Strange.  Her  majesty,  Queen  Victoria,  and  the  Prince 
Consort,  had  made  certain  etchings,  and  had  certain  lithographs  struck  off  from 
them  for  their  own  use,  and  not  for  the  purpose  of  publication.  One  of  the 
impressions  had  been  surreptitiously  retained  by  one  of  the  workmen  employed 
in  the  operation,  and  had  passed  from  his  hands  into  the  hands  of  a  publisher, 
who  declared  his  intention  of  publicly  exhibiting  the  impression  so  improperly 
obtained,  and  also  of  selling  a  descriptive  catalogue  of  the  lithographs.  Lord 
Cottenham  restrained  the  publication  of  the  catalogue,  as  well  as  the  exhibi- 
tion of  the  impression,  upon  the  ground  that,  as  the  etchings  were  the  exclusive 
property  of  the  plaintiff,  no  one  had,  without  his  consent,  the  right  to  make 
any  use  whatever  of  them,  either  by  publishing  a  catalogue  of  them  or  other- 
wise. 

89  Gee  v.  Pritchard,  2  Swanst.  418;  Woolsey  v.  Judd,  4  Duer,  379;  Denis  v. 
Leclerc,  1  Mart.  (La.)  297;    Grigsby  v.  Breckinridge,  2  Bush    (Ky.)  4S0. 

so  Earl  of  Granard  v.  Dunkin,  1  Ball  &  B.  207;  Thompson  v.  Stanhope, 
Amb.  737. 

oi  Abernethy  v.  Hutchinson,  1  Hall  &  T.  28,  40,  3  Law  J.  Ch.  209;  Caird  v. 
Sime,  12  App.  Cas.  32U;  Bartlette  v.  Crittenden,  4  McLean,  300,  Fed.  Cas.  No. 
1,082. 


Ch.    13]  INJUNCTIONS    RELATING    TO    TORTS.  309 

turer,  he  is  entitled  to  an  injunction  against  their  publication  by 
others  in  an  incorrect  and  garbled  form.92 

4.  A  trade-mark  is  a  peculiar  name  or  device  by  which  a  person 
dealing  in  an  article  designates  it  as  of  a  peculiar  kind,  character, 
or  quality,  or  as  manufactured  by  or  for  him,  and  of  which  he  is  en- 
titled to  the  exclusive  use.93  The  exclusive  right  to  make  such  use 
or  application  is  rightly  treated  as  property,  and  no  other  dealer  has 
the  right  to  use  the  same  mark  on  goods  of  the  same  description.  By 
so  doing,  he  would  be  substantially  representing  the  goods  to  be  the 
manufacture  of  the  dealer  who  had  previously  adopted  the  mark  or 
brand  in  question,  and  so  would  or  might  deprive  him  of  the  profit 
he  might  have  made  by  the  sale  of  the  goods  which  the  purchaser 
intended  to  buy.  The  jurisdiction  of  a  court  of  equity,  therefore,  to 
restrain  the  infringement  of  a  trade-mark,  is  founded,  not  upon  the 
imposition  upon  the  public  practiced  by  the  palming  off,  by  one  man, 
of  his  goods  as  the  goods  of  another,  but  on  the  wrongful  invasion  of 
the  right  of  property  acquired  in  the  trade-mark.94  It  therefore  fol- 
lows that  the  fraudulent  use  of  marks  and  labels  for  the  purpose 
of  deceiving  the  public  will  not  be  enjoined  at  the  suit  of  persons  who 
do  not  carry  on  any  business  to  which  the  use  of  such  marks  and 
labels  is  incident;  such  as  the  officers  and  members  of  a  labor  organ- 
ization, which  has  adopted  a  label  to  designate  goods  manufactured 
by  its  members,  as  employe's  of  others.95 

A  recent  act  of  congress  provides  for  the  registration  of  trade- 
marks in  the  patent  office,  and  gives  a  remedy,  either  by  way  of  dam- 

»2  Drnmmond  v.  Altemus,  60  Fed.  338. 

ss  Weener  v.  Brayton,  152  Mass.  101,  25  N.  E.  4G;  Rogers  v.  Taintor,  97 
Mass.  291;   Kerr,  Inj.  p.  394. 

94  Leather  Cloth  Co.  v.  American  Leather  Cloth  Co.,  4  De  Ges.  J.  &  S.  137; 
Mitchell  v.  Henry,  15  Ch.  Div.  191;  Schneider  v.  Williams,  44  N.  J.  Eq.  391, 
14  Atl.  S12;  Weener  v.  Brayton,  152  Mass.  101,  25  N.  E.  46;  U.  S.  v.  Steffens, 
100  U.  S.  82. 

95  Weener  v.  Brayton,  152  Mass.  101,  25  N.  E.  46;  Cigar  Makers'  Protective 
Union  v.  Conhaim,  40  Minn.  243,  41  N.  W.  943;  Schneider  v.  Williams,  44  N. 
J.  Eq.  391,  14  Atl.  812.  A  fraudulent  use  of  the  union  label  may  be  enjoined 
by  a  manufacturer  who  has  adopted  it,  and  whose  business  is  injured  by  the 
fraudulent  use.  Carson  v.  Ury  (U.  S.  Cir.  Ct.  Mo.)  39  Fed.  777.  Since  these 
decisions  have  been  made,  statutes  have  been  passed  in  many  of  the  states 
protecting  labels  and  trade-marks  adopted  by  labor  organizations. 


310  EQUITABLE    REMEDIES.  [Ch.    13 

ages  or  by  injunction,  in  equity  for  their  infringement;96  but  the 
right  to  trade-marks  and  the  remedies  for  their  infringement  exist 
independent  of  this  statute.97  It  has  also  been  held  that  the  state 
courts  have  jurisdiction  in  trade-mark  cases,  since  the  federal  con- 
stitution does  not  place  this  matter  within  the  control  of  congress, 
except,  perhaps,  by  virtue  of  the  power  to  regulate  commerce.98 
Protection  of  Other  than  Property  Rights. 

The  English  court  of  chancery  had  no  power  to  grant  injunctions 
except  in  cases  where  there  was  injury,  either  actual  or  prospective, 
to  civil  property.99  It  therefore  possessed  no  jurisdiction  to  restrain, 
by  injunction,  the  publication  of  a  libel,  or  the  making  of  slanderous 
statements  calculated  to  injure  a  man  in  his  business.100 

The  judicature  act  of  1873,  which  abolished  the  ancient  English 
courts,  and  substituted  in  their  place  the  high  court  of  justice,  con- 
ferred on  that  court  the  power  to  grant  injunctions  whenever  it  shall 
appear  to  the  court  to  be  just  and  convenient.101  Sir  George  Jessel, 
commenting  on  this  provision,  said:  "Probably  it  is  still  true  that, 
as  a  general  rule,  the  court  only  interferes  where  there  is  some  ques- 
tion as  to  property.  I  do  not  think  that  the  interference  of  the  court 
is  absolutely  confined  to  that  now." 102  It  has  accordingly  been  held 
in  England  that,  where  a  libel  is  calculated  to  injure  plaintiff  in  his 
trade  or  business,  an  injunction  may  be  granted; 103  and  even  an  oral 
slander  which  is  detrimental  to  the  business  of  the  plaintiff  may  be 
enjoined.104  The  American  courts,  however,  have  refused  to  follow 
these  recent  English  decisions;    and  the  publication  of  a  libel,  no 

98  Act  Cong.  March  3,  lo81. 

»7  L.  H.  Harris  Drug  Co.  v.  Stucky,  46  Fed.  624. 

98  Smail  v.  Sanders,  118  Ind.  105,  20  N.  E.  296;  U.  S.  v.  Steffens,  100  U.  S.  82. 

99  Huggensin's  Case,  2  Atk.  469,  488;  Gee  v.  Pritchard,  2  Swanst.  402,  413; 
Seeley  v.  Fisher,  11  Sim.  581,  583;  Fleming  v.  Newton,  1  H.  L.  Cas.  363,  371, 
37G;  Emperor  of  Austria  v.  Day,  3  De  Gex,  F.  &  J.  217,  238-241;  Kerr,  Inj. 
p.  1. 

ioo  Prudential  Assur.  Co.  v.  Knott,  10  Ch.  App.  142. 
ioi  Act  36  &  37  Vict.  c.  66,  §  25,  subsec.  8. 

102  Aslatt  v.  Corporation  of  Southampton,  16  Ch.  Div.  148. 

103  Thorley's  Cattle  Food  Co.  v.  Massam,  14  Ch.  Div.  763;  Quartz  Hill  Con. 
G.  Min.  Co.  v.  Beall,  20  Ch.  Div.  501;  Hill  v.  Hart-Davies,  21  Ch.  Div.  798; 
Hayward  v.  Hayward,  34  Ch.  Div.  198. 

ioi  Loog  v.  Bean,  26  Ch.  Div.  366. 


Ch.  13]  INJUNCTIONS  RELATING  TO  TORTS.  311 

matter  how  injurious  to  plaintiffs  business,  will  not  be  enjoined, — 
partly  because  the  jurisdiction  of  equity  does  not  extend  to  false 
representations  as  to  the  character  or  quality  of  plaintiffs'  property 
or  as  his  title  thereto,  which  involve  no  breach  of  trust  or  of  con- 
tract, and  partly  because  to  grant  such  an  injunction  would  result  in 
establishing  a  censorship  over  the  press,  in  violation  of  the  consti- 
tutional provision  guarantying  freedom  of  speech  and  of  the  press.105 
But  if  the  publication  is  not  only  libelous,  but  is  intended  to  frighten 
away  plaintiff's  customers,  and  intimidate  them  from  dealing  with 
him,  an  injunction  against  its  circulation  will  be  granted.106 

A  recent  decision  by  a  New  York  court,  though  not  one  of  last 
resort,  warrants  a  doubt  as  to  whether  the  jurisdiction  of  courts  of 
equity,  even  in  this  country,  is  "absolutely  confined"  to  the  protec- 
tion of  civil  property.  The  exhibition  of  a  statue  of  a  deceased  per- 
son, as  a  typical  philanthropist,  was  enjoined  at  the  suit  of  her 
relatives,  on  the  sole  ground  that  such  exhibition  would  cause  them 
mental  pain,  distress,  and  disgrace,  for  which  no  damages  would 
afford  any  remedy.107  In  a  still  more  recent  case,  however,  the 
federal  circuit  court  for  the  district  of  Massachusetts  refused  to 
enjoin  the  publication  of  the  biography  of  a  deceased  inventor,  not 
libelous  or  scandalous  in  its  nature,  though  the  publication  injured 
the  feelings  and  was  undertaken  against  the  express  prohibition  of 
his  widow  and  children.108  It  is  worthy  of  note,  in  this  connection, 
that  as  far  back  as  Lord  Eldon's  time  it  was  the  settled  doctrine  of 
equity  that  injury  to  feelings  was  no  ground  for  injunctive  relief.109 

105  Kidd  v.  Horry,  28  Fed.  773;  Boston  Diatite  Co.  v.  Florence  Manuf'g  Co., 
114  Mass.  09;  Whitehead  v.  Kitson,  119  Mass.  484;  Mayer  v.  Association,  47 
N.  J.  Eq.  519,  20  Atl.  492;  New  York,  J.  G.  Soc.  v.  Roosevelt,  7  Daly,  188; 
Brandreth  v.  Lance,  8  Paige  (N.  Y.)  24;  Singer  Manuf'g  Co.  v.  Domestic  S. 
M.  Co.,  49  Ga.  70. 

loe  Threats  to  prosecute  plaintiff's  customers  for  infringement  of  patent, 
Emack  v.  Kane,  34  Fed.  47;  Grand  Rapids  School  Furniture  Co.  v.  Haney 
School  Furniture  Co.,  92  Mich.  558,  52  N.  W.  1009;  Shoemaker  v.  South  Bend 
Spark  Arrester  Co.,  135  Ind.  471,  35  N.  E.  380;  boycotting  circulars,  Casey  v. 
Cincinnati  Typographical  Union,  45  Fed.  135. 

107  Schuyler  v.  Curtis,  G4  Hun,  594,  19  N.  Y.  Supp.  264. 

los  Corliss  v.  E.  W.  Walker  Co.,  57  Fed.  434. 

loo  In  Gee  v.  Pritchard  (1818)  2  Swanst.  402,  where  the  author  of  private  let- 
ters sought  to  enjoin  their  publication  by  the  i receiver,  plaintiff's  counsel  in 


312  EQUITABLE    REMEDIES  [Ch.   13 


INJUNCTIONS    RELATING  TO   TRUSTS  AND  EQUITABLE 

RIGHTS. 

193.  Equity  will  restrain  the  breach  of  a  trust  or  confi- 
dence, or  the  violation  of  an  equitable  right,  -whenever  the 
circumstances  are  such  that  the  aid  of  an  injunction  is  re- 
quired. 

Heretofore  we  have  been  considering  rights  recognized  by  courts 
of  law,  and  in  which  the  ground  of  jurisdiction  is  the  superiority 
of  the  equitable  over  the  legal  remedy.  We  now  come  to  consider 
a  class  of  cases  where  the  wrong  restrained  is  one  which  is  regarded 
as  such  in  equity  only,  and  in  which,  accordingly,  the  ground  of  the 
jurisdiction  is  the  absence  of  a  legal  remedy.  A  very  wide  range  of 
subjects  falls  under  this  subdivision,  and  it  will  be  impossible  to  do 
more  than  mention  the  most  conspicuous  examples. 

A  trustee  may  not  use  the  power  which  the  trust  confers  on  him 
at  law,  except  for  the  legitimate  purposes  of  the  trust.  If  he  at- 
tempts to  do  so,  equity  will  restrain  him  by  injunction  from  making 
a  wanton  exercise  of  his  legal  powers.110  So,  also,  the  court  has  juris- 
diction to  restrain  by  injunction  one  or  more  members  of  a  partner- 
ship from  doing  acts  inconsistent  with  the  terms  of  the  partnership 
agreement,  or  with  the  duties  of  a  partner,  though  a  dissolution  is 
not  sought.111  Equity  will  restrain  a  corporation,  at  the  suit  of  a 
stockholder,  from  doing  acts  beyond  the  authority  conferred  on  it 

argument  stated  that  an  attempt  would  be  made  to  sustain  the  injunction,  on 
the  LTounrl  that  the  publication  of  the  letters  will  be  painful  to  the  feelings  of 
plaintiff.  "The  Lord  Chancellor:  I  will  relieve  you  also  from  that  argument. 
The  question  will  be  whether  the  bill  has  stated  facts  of  which  the  court  can 
take  notice,  as  a  case  of  civil  property,  which  it  is  bound  to  protect.  The  in- 
junction cannot  be  maintained  on  any  princ'ple  of  this  sort:  that,  if  a  letter  has 
been  written  in  the  way  of  friendship,  either  the  continuance  or  discontinuance 
of  that  friendship  affords  a  reason  for  the  interference  of  the  court."  The  in- 
junction was  finally  sustained,  on  the  ground  that  the  publication  of  the  letters 
by  the  receiver  was  an  invasion  of  the  property  rights  of  the  author. 

no  Balls  v.  Strutt,  1  Hare,  14G;  Cohen  v.  Morris,  70  Ga.  313;  Davis  v. 
Browne,  2  Del.  Ch.  188. 

in  Fairthorne  v.  Weston,  3  Hare,  387;  Rutland  Marble  Co.  v.  Ripley,  10 
Wall.  :;:»;   Xew  v.  Wright,  44  Miss.  202. 


Ch.    13]  AND    EQUITABLE    RIGHTS.  313 

by  its  charter,  or  from  violating  the  duties  which  in  equity  attach 
to  the  relation  of  directors  and  stockholders  inter  se.112  To  the  ex- 
tent that  public  officers  and  public  bodies  are  trustees  either  of 
franchises  or  property  for  the  benefit  of  the  public,  they  are  ame- 
nable to  the  jurisdiction  of  courts  of  equity  in  the  administration 
of  such  trusts, — at  the  suit  of  the  people  if  the  people  of  the  state 
at  large  are  cestuis  que  trustent,  or  of  the  particular  municipality 
interested,  or  of  individuals  having  a  special  interest  in  the  execu- 
tion of  the  trust,  or  in  preventing  the  acts  sought  to  be  enjoined.113 
Again,  where  a  negotiable  instrument  is  invalid  as  between  the  par- 
ties, the  maker  is  entitled  to  an  injunction  against  its  negotiation 
by  the  payee  to  an  innocent  holder,  whereby  the  defense  would  be 
lost; 114  and  so  with  corporate  stock  and  other  securities  not  strictly 
negotiable.115 

112  Hawes  v.  Oakland,  104  U.  S.  450;  Gamble  v.  Queens  County  Water  Co., 
123  N.  Y.  91,  98,  99,  25  N.  E.  201;  Wiswell  v.  First  Cong.  Church,  14  Ohio  St. 
31;   Small  v.  Minneapolis  Electric  Matrix  Co.,  45  Minn.  264,  267,  47  N.  W.  797. 

us  People  v.  Canal  Board  of  New  York,  55  N.  Y.  390,  394;  Greene  v  Mum- 
ford,  5  R.  I.  472. 

ii4  Metier  v.  Metier,  18  N.  J.  Eq.  270;  Moeckly  v.  Gorton,  78  Iowa,  202,  42 
N.  W.  648;  Wilhelmson  v.  Bentley,  25  Neb.  473,  41  N.  W.  387;  Hinkle  v.  Mar- 
gerum,  50  Ind.  240;  Hile  v.  Davison,  20  N.  J.  Eq.  229. 

lis  King  v.  King,  6  Ves.  172. 


ul4  REFORMATION,   CANCELLATION,   AND    QUIETING    TITLE.       [Ch.    14 

CHAPTER   XIV. 
REFORMATION,  CANCELLATION,  AND  QUIETING  TITLE. 

194.  Reformation 

195.  Cancellation. 

190.    Removing  Cloud  on  Title. 

REFORMATION. 

194.  Equity  will  reform  a  -written  contract  or  other  in- 
strument inter  vivos  where,  through  mutual  mistake,  or 
mistake  of  one  of  the  parties  accompanied  by  the  fraud 
of  the  other,  it  does  not  as  written  truly  express  the  agree- 
ment of  the  parties. 

Courts  of  common  law  could  declare  a  written  instrument  either 
valid  or  invalid.  If  invalid,  they  could  set  it  aside  altogether;  and, 
if  valid,  they  could  construe  and  enforce  it  as  written;  but  they  pos- 
sessed no  power  of  rectifying  it  to  conform  to  the  intention  of  the 
parties.  Hence  arose  the  equitable  jurisdiction  of  reformation. 
Equity,  which  always  regards  the  intention  of  the  parties  rather  than 
the  form  in  which  they  have  expressed  it,  did  not  scruple  from  the 
earliest  times  to  rectify  written  contracts  and  other  instruments 
inter  vivos  to  make  them  correspond  with  the  real  meaning  and  in- 
tention of  the  parties.1  To  warrant  this  relief,  however,  the  mistake 
in  reducing  the  agreement  to  writing  must  be  mutual,2  or  there  must 
be  mistake  of  one  party  and  fraud  in  the  other  in  taking  advantage 

i  One  of  the  earliest  cases  on  record  is  thus  stated  in  Toth.  131  (37  Eliz.): 
A  lease  was  to  be  made  excepting  the  woods,  but  the  clerk  drew  the  deed  so 
that  it  made  no  mention  of  woods,  though  it  did  refer  to  some  exception; 
and,  on  the  lessee  commencing  to  cut,  he  was  enjoined  not  to  do  so. 

2  Holabird  v.  Burr,  17  Conn.  559;  Murphy  v.  Rooney,  45  Cal.  78;  Hancock 
v.  Cossett,  45  Fed.  754;  Canedy  v.  Marcy,  13  Gray  (Mass.)  373.  Mistake  of 
one  party  only  is  no  ground  for  relief  when  the  contract  is  written  just  as  it 
was  understood  and  intended  by  the  other.  Paine  v.  Jones,  75  N.  Y.  593.  See, 
also,  ante,  127,  "Mistake,"  etc. 


Ch.    14]  CANCELLATION.  315 

of  that  mistake,  and  obtaining  a  contract  with  knowledge  that  the 
one  dealing  with  him  is  in  error  in  regard  to  what  are  its  terms.3 

The  reformation  of  a  written  contract,  which  is  the  highest  and 
most  solemn  evidence  of  the  agreement  of  the  parties,  will  not  be 
granted,  unless  the  proof  of  mistake  or  fraud  is  clear  and  definite ; 4 
and  a  complainant  who  asks  that  a  part  of  the  stipulation  be  permit- 
ted to  stand,  and  a  part  altered  or  stricken  out,  must  produce 
stronger  proof  than  is  required  from  one  who  disowns  the  contract 
in  its  entirety,  on  the  ground  of  fraud  or  undue  influence.5 

CANCELLATION. 

195.  Equity  -will  cancel  a  written  instrument: 

(a)  If,  though  utterly  void,  it  is  apparently  valid 

on  its  face. 

(b)  If  it  is  voidable   on   the  ground  of  fraud   or 

mistake,  as  heretofore  explained. 

Courts  of  common  law  would,  of  course,  not  enforce  a  void  or  void- 
able instrument;  but  they  "pursued  a  policy  of  masterly  inactivity," 
and  would  grant  a  party  executing  it  no  affirmative  relief  until  a  suit 
was  brought  thereon.  Equity,  however,  acting  on  the  ground  that 
such  an  instrument  might  be  vexatiously  used,  when,  by  lapse  of 
time,  the  evidence  of  its  void  or  voidable  character  might  be  lost, 
took  upon  itself  to  order  its  cancellation.8 

1.  With  respect  to  an  instrument  absolutely  void,  the  rule  is  that 
where  the  illegality  is  apparent  on  its  face,  so  that  its  nullity  can  ad- 
mit of  no  doubt,  equity  will  not  interfere.7  Such  a  document  is 
plainly  innocuous;  no  lapse  of  time  can  add  to  its  power  so  as  to 

s  Bryce  v.  Lorillard  Fire  Ins.  Co.,  55  N.  Y.  240,  243;  Welles  v.  Yates,  44  N. 
Y.  525,  529;  Winans  v.  Huyck,  71  Iowa,  459,  32  N.  W.  422;  Higgins  v. 
Parsons,  65  Cal.  2S0,  3  Pac.  881;  James  v.  Cutler,  54  Wis.  172,  10  N.  W.  147. 

*Henkle  v.  Royal  Exch.  Assur.  Co.,  1  Ves.  Sr.  31S;  Turner  v.  Sbaw,  96 
Mo.  22,  8  S.  W.  897;  Sable  v.  Maloney,  48  Wis.  331,  4  N.  W.  479;  Ford  v. 
Joyce,  78  N.  Y.  618;  Muller  v.  Rhuman,  62  Ga,  332. 

e  Harding  v.  Long,  103  N.  C.  1,  9  S.  E.  445. 

«  Underh.  Eq.  p.  215. 

i  Peirsoll  v.  Elliott,  6  Pet  95;  Town  of  Venice  v.  Woodruff,  62  N.  Y.  462, 
468;  Town  of  Springport  v.  Teutonia  Sav.  Bank,  75  N.  Y.  397,  402. 


316  REFORMATION,   CANCELLATION,    AND    QUIETING    TITLE.       [Ch.    14 

render  it  dangerous.  Illustrations  are  supplied  by  instruments  which 
on  their  face  disclose  an  illegal  consideration,  or  the  fact  that  they 
have  been  fully  satisfied.8  But  where  the  instrument,  though  in  fact 
void,  has  the  appearance  of  validity,  the  case  is  otherwise.  TheD 
there  exists  a  material  danger,  against  which  protection  may  reason- 
ably be  sought.  Thus,  forged  instruments  have  been  ordered  can- 
celed.9 

2.  As  to  voidable  instruments,  it  is  not  now  necessary  to  repeat 
what  has  already  been  said,  under  the  headings  of  "Fraud"  and  "Mis- 
take,"  respecting  the  circumstances  which  will  give  a  person  the 
option  of  avoiding  his  own  acts;  and  the  student  is  referred  to  these 
subjects,  and  to  what  has  been  said  under  the  maxim,  "He  who  comes 
into  equity  must  come  with  clean  hands,"  for  information  respecting 
the  right  of  cancellation  or  rescission  in  such  cases.10 


REMOVING    CLOUD    ON   TITLE. 

196.  Whenever  a  deed  or  other  instrument  exists  which 
may  be  vexatiously  or  injuriously  used  against  a  party 
after  the  evidence  to  impeach  or  invalidate  it  is  lost,  or 
which  may  throw  a  cloud  or  suspicion  over  his  title  or 
interest,  and  he  cannot  immediately  protect  or  maintain 
his  right  by  any  course  of  proceedings  at  law,  a  court  of 
equity  will  afford  relief  by  directing  the  instrument  to  be 
delivered  up  and  canceled,  or  by  making  any  other  decree 
which  justice  and  the  right  of  the  party  may  require.11 

A  suit  to  remove  a  cloud  from  title,  like  a  suit  for  the  concellation 
of  documents,  depends  on  the  principle  of  quia  timet;  that  is,  the 
deed  or  instrument  constituting  the  cloud  may  be  used  vexatiously, 
when,  by  lapse  of  time,  the  evidence  of  its  void  or  voidable  character 

s  Simpson  v.  Howden,  3  Mylne  &  C.  97;  Smyth  v.  Griffin,  13  Sim.  245; 
Threlfall  v.  Lunt,  7  Sim.  027. 

»  Peake  v.  Highfield,  1  Russ.  559;  Cooper  v.  Vesey,  20  Ch.  Div.  612;  Dunn 
v.  Miller,  96  Mo.  324,  9  S.  W.  640;   Sharon  v.  Terry,  36  Fed.  337. 

io  See  ante,  38. 

ii  Story,  Eq.  Jur.  §  694;  Martin  v.  Graves,  5  Allen  (Mass.)  661;  Dull's  Ap- 
peal, 113  Pa.  St.  510,  6  Atl.  540. 


Cll.    14]  REMOVING    CLOUD    ON    TITLE.  317 

may  be  lost12  Independent  of  statute,  an  action  to  remove  a  cloud 
from  title  can  only  be  brought  by  plaintiff  in  possession,13  since  an 
owner  of  land  out  of  possession  may  establish  his  title  at  law  in 
ejectment.14  In  some  of  the  states,  however,  statutes  exist  which 
permit  the  action  to  be  brought  by  a  plaintiff  out  of  possession.15  In 
analogy  to  the  rule  which  obtains  in  action  for  cancellation  and 
rescission,  equity  will  not  interfere  to  remove,  as  a  cloud  on  title, 
an  instrument  void  on  its  face; 16  and  relief  will  only  be  granted  when 
the  hostile  title  is  apparently  good,  but  is  really  defective  by  some- 
thing not  appearing  on  its  face.17 

12  1  Fonbl.  Eq.  bk.  1,  c.  1,  §  8,  note  y. 

is  u.  S.  v.  Wilson,  118  U.  S.  86,  6  Sup.  Ct.  991;  Moores  v.  Townshend,  102 
N.  Y.  387,  393,  7  N.  E.  401. 

i*  Wetherell  v.  Eberle,  123  111.  666,  14  N,  E.  675. 

is  Hatch  v.  Village  of  St.  Joseph,  68  Mich.  220,  36  N.  W.  36;  Hyde  v.  Red- 
ding, 74  Cal.  493,  16  Pac.  3S0;   Wilson  v.  Hooser,  72  Wis.  420,  39  N.  W.  772. 

is  Maloney  v.  Finnegan,  3S  Minn.  70,  35  N.  W.  723;  Moores  v.  Townshend, 
102  N.  Y.  387,  393,  7  N.  E.  401. 

17  Beach,  Eq.  Jur.  §  55S;  Benner  v.  Kendall,  21  Fla.  584,  588;  Rea  v.  Long- 
street,  54  Ala.  291;  Davis  v.  Boston,  129  Mass.  377;  Browning  v.  Lavendeiv 
104  N.  C.  69,  10  S.  E.  77. 


318  ANCILLARY    REMEDIES.  [Ch.   15 

CHAPTER  XV. 

ANCILLARY    REMEDIES. 

197.  Discovery. 

19S.  Bills  to  Perpetuate  Testimony. 

199.  Examination  of  Witnesses  de  Bene  Esse. 

200.  Ne  Exeat. 

201.  Interpleader. 

202.  Essential  Elements. 

203.  Receivers. 

204.  In  What  Cases  Receivers  will  be  Appointed. 

The  equitable  remedies  we  have  just  considered  have  had  for  their 
object  the  adjudication  of  the  rights  of  the  parties  and  the  award  of 
final  relief.  We  now  come  to  consider  a  class  of  remedies  which  has  for 
its  object  either  the  preservation  of  the  property  in  controversy  until 
the  final  termination  of  the  litigation,  or  the  acquisition  of  means 
by  which  the  final  rights  of  the  parties  can  be  more  conveniently  and 
perfectly  adjusted. 

DISCOVERY. 

197.  A  bill  of  discovery  was  a  bill  -which  asked  no  re- 
lief, but  simply  for  a  discovery  of  facts  resting  in  the 
knowledge  of  the  defendant,  or  of  deeds  or  writings  in 
the  possession  or  the  power  of  the  defendant;  and  the  ob- 
ject of  the  discovery  -was  to  maintain  some  action  or  other 
proceeding  in  a  court  of  law.  To  maintain  a  bill  of  dis- 
covery, the  action  must  already  have  been  commenced  at 
law,  unless,  indeed,  the  object  of  the  discovery  is  to  ascer- 
tain in  fact  who  is  a  proper  defendant  at  law.1 

At  common  law,  the  parties  litigant,  as  well  as  all  other  interested 
persons,  were  incompetent  to  testify  in  the  action.  Jeremy  Ben- 
tham,  who  described  these  rules  of  evidence  as  devised  to  exclude 

i  Snell,  Eq.  p.  718;  Angell  v.  Angell,  1  Sim.  &  S.  83;  City  of  London  v. 
Levy,  8  Ves.  404. 


Ch.  15]  DISCOVERY.  319 

the  testimony  of  every  one  who  was  likely  to  know  anything  about 
the  matter,  was  the  first  to  point  out  that,  as  a  rule,  no  witness  ought 
to  be  disqualified  on  account  of  interest  alone,  and  that  the  ob- 
jection to  the  evidence  of  an  interested  person  ought  to  be  treated, 
not  as  an  objection  to  the  reception  of  his  evidence,  but  merely  as 
detracting  from  its  weight  when  received.  It  was  not  until  1851  that 
Mr.  Bentham's  views  finally  triumphed  in  England;2  and  the  evils 
of  the  common-law  rules  of  evidence  would  have  been  intolerable  had 
it  not  been  for  the  jurisdiction  which  equity  assumed  to  grant  dis- 
covery, and  thus  render  the  evidence  of  the  parties  litigant  available. 
Whenever  a  defendant  in  an  action  at  law  desired  to  avail  himself  of 
facts  known  only  to  himself  and  the  plaintiff,  he  would  file  his  bill 
in  equity,  calling  on  plaintiff  to  answer  on  oath  the  interrogatories 
contained  in  it;  and  then  the  plaintiff,  unless  prepared  to  perjure  him- 
self, was  obliged  by  his  answer  to  admit,  though  it  might  be  with  his 
own  coloring,  the  substantial  facts  of  the  case.  This  answer,  though 
not  evidence  in  the  ordinary  sense,  might  then  have  been  introduced 
in  the  action  at  law  by  defendant  as  an  admission  made  by  plaintiff, 
just  as  any  letter  written  by  him  admitting  relevant  facts  might  have 
been  given  in  evidence.  In  addition  to  the  cases  in  which  the  object 
of  the  bill  was  to  obtain  an  admission  of  facts  exclusively  within  the 
knowledge  of  the  parties  litigant,  there  were  many  others  in  which 
the  aim  was  to  obtain  a  discovery  and  production  of  documents, — an 
object  effected  in  equity  by  means  of  the  ordinary  interrogatory  as 
to  documents  and  subsequent  motion  for  production. 

By  these  means  the  shortcomings  of  the  law  were  in  some  measure 
remedied.  Since,  however,  the  admission  of  a  third  person  could 
never  be  received  in  evidence  against  a  party  litigant,  the  assistance 
of  equity  could  in  no  way  be  made  available  to  supply  the  exclusion 
of  persons  disqualified  because  of  interest,  but  not  actually  parties 
to  the  litigation;  and  the  rule  was  perfectly  settled  that  no  bill  of 
discovery  lay  against  a  mere  witness.3 

Not  only  would  equity  grant  discovery  in  aid  of  actions  of  law ;  but 
whenever  a  suit  was  brought  in  equity,  touching  matters  otherwise 
within  its  jurisdiction,  defendant  was  compellable  to  answer  inter- 

2  St.  14  &  15  Vict  c.  99,  rendered  interested  persons  competent  as  witnesses. 
Similar  statutes  exist  in  all  the  states. 

3  Fenton  v.  Hughes,  7  Ves.  287;  2  Story,  Eq.  Jur.  §  1499. 


320  ANCILLARY    REMEDIES.  [Ch.    15 

rogatories  which  were  contained  in  the  body  of  the  bill;  and  com- 
plainant was  likewise  compellable  to  make  discovery  by  means  of 
cross  interrogatories  in  the  answer.4 

The  question,  of  course,  arises,  what  has  been  the  effect  of  the  stat- 
utes in  England  and  the  various  states  in  this  country  removing  the 
disqualification  of  parties  and  interested  persons?  The  practical 
effect  has  everywhere  been  to  render  the  technical  bill  of  discovery 
in  aid  of  an  action  at  law  obsolete.  In  England  and  in  some  of 
the  states  it  has  been  held  that  a  bill  of  discovery  will  not  lie  when 
full  disclosure  can  be  compelled  in  the  action  at  law,5  while  other 
courts  have  held  that  the  ancient  equity  jurisdiction  still  remains, 
under  the  rule  that  the  jurisdiction  once  existing  is  not  lost  be- 
cause courts  of  law  have  subsequently  acquired  a  like  authority.6 
The  principles,  however,  on  which  courts  of  equity  acted  in  granting 
discovery  are  still  important,  partly  because  they  form  the  basis  of 
a  system  of  statutory  discovery  in  force  in  many  of  the  states,  and 
partly  because  they  are  the  origin  of  some  very  important  rules  of 
evidence. 
Rules  Respecting  Discovery. 

There  were  three  important  rales  respecting  the  right  of  discovery 
founded  on  public  policy,  which  still  survive  in  modern  principles 
of  evidence:     (1)  No  man  need  discover  matter  tending  to  criminate 

<  2  Story,  Eq.  Jur.  §  1483;   Haynes,  Eq.  p.  118. 

s  Anderson  v.  Bank  of  British  Columbia,  2  Ch.  Div.  644;  Attorney  General 
v.  Gaskill,  20  Ch.  Div.  519;  Ex  parte  Boyd,  105  U.  S.  657;  Riopelle  v.  Doell- 
mer,  26  Mich.  105;  Hall  v.  Joiner,  1  S.  C.  190;  Chapman  v.  Lee,  45  Ohio  St. 
356,  13  N.  E.  736. 

«  Post  v.  Toledo,  etc.,  R.  Co.,  144  Mass.  341,  11  N.  E.  540;  Union  Pass.  Ry. 
Co.  v.  Mayor,  etc.,  71  Md.  238.  17  Atl.  933;  Handley  v.  Heflin,  84  Ala.  600, 
4  South.  725;  Kearny  v.  Jeffries,  48  Miss.  357;  Hoppock's  Ex'rs  v.  United 
New  Jersey  R.  &  C.  Co.,  27  N.  J.  Eq.  286;  Lancy  v.  Randlett,  80  Me.  169,  13 
Atl.  6S6;  Russell  v.  Dickeschied,  24  W.  Va.  61.  It  should  be  observed,  how- 
ever, that  in  these  cases  discovery  was  sought  of  facts  exclusively  within  de- 
fendant's knowledge,  and  not  of  facts  known  to  plaintiff,  and  to  which  he  was 
incompetent  to  testify.  The  statutory  systems  of  discovery  in  force  in  many 
of  the  states  have  also  for  their  object  the  ascertaining  of  facts  peculiarly 
within  defendant's  knowledge,  and  necessary  to  enable  plaintiff  to  prove  his 
case. 


Ch.  15]  DISCOVERY.  321 

himself,  or  to  expose  him  to  a  penalty  or  forfeiture.7  (2)  No  man  need 
discover  legal  advice  which  has  been  given  him  by  his  professional 
advisers,  or  statements  of  facts  which  have  passed  between  himself 
and  them  in  reference  to  the  dispute  in  litigation ; 8  nor  will  a  mar- 
ried woman  be  compelled  to  disclose  facts  which  might  damage  her 
husband.9  (3)  Official  persons  cannot  be  compelled  to  disclose  any 
matters  of  state,  the  publication  of  which  may  be  prejudicial  to  the 
community.10 

Other  rules,  still  important  to  be  borne  in  mind,  are  the  following: 
Defendant  must  answer  as  to  all  facts  material  to  plaintiff's  case; 
he  must  answer  to  all,  and  not  to  a  portion  only;  and  he  must 
answer  distinctly,  completely,  and  without  needless  prolixity,  and  to 
the  best  of  his  information  and  belief.11  It  will  be  observed  that  de- 
fendant is  not  required  to  answer  questions  merely  because  they 
are  material  to  the  issue,  but  only  because  they  are  material  to  plain- 
tiff's case;  for,  although  plaintiff  is  entitled  to  know  what  the  de- 
fense is,  and  to  have  it  verified  on  oath,  he  is  not  entitled  to  cross- 
examine  the  defendant  as  to  the  precise  mode  in  which  to  estab- 
lish it.12 

All  the  foregoing  rules  also  apply,  when  discovery  is  sought  with 
respect  to  documents  in  defendant's  possession.  When  required  by 
plaintiff,  defendant  must  set  forth  a  list  of  all  documents  in  his 
possession  from  which  discovery  of  the  matter  in  question  can  be 
obtained;  and  if  it  appears  from  the  answer  that  the  documents 
are  in  defendant's  possession  or  power,  and  that  they  are  of  such 
character  as  to  constitute  proper  matters  of  discovery  within  the 
ordinary  rules,  plaintiff  will  be  given  leave  to  inspect  and  copy  them, 

i  East  India  Co.  v.  Campbell,  1  Ves.  Sr.  246;  Claridge  v.  Hoare,  14  Ves.  59, 
65;  Saunders  v.  Wiel  [1892]  2  Q.  B.  321;  Boyd  v.  U.  S.,  110  U.  S.  616,  6  Sup. 
Ct.  524;  State  v.  Simmons  Hardware  Co.,  109  Mo.  118,  18  S.  W.  1125;  Horst- 
man  v.  Kaufman,  97  Pa.  St.  147;   Adams,  Eq.  p.  2. 

a  Greenough  v.  Gaskell,  1  Mylne  &  K.  98;  Jones  v.  Pugh,  1  Phil.  Ch.  96; 
Parkhurst  v.  Lowten,  2  Swanst.  194,  216. 

»  Le  Texier  v.  Margrave  of  Anspach.  5  Ves.  322. 

io  Smith  v.  East  India  Co.,  1  Phil.  Ch.  50. 

ii  Story,  Eq.  PI.  §  853;    Mitf.  Eq.  PI.  357,  365. 

12  Llewellyn  v.  Badeley,  1  Hare,  527;  Haskell  v.  Haskell,  3  Cush.  542;  Wil- 
son v.  Webber,  2  Gray,  558;  Norfolk  &  W.  R.  Co.  v.  Postal  Tel.  Cable  Co., 
88  Va.  932,  14  S.  E.  689;   Downie  v.  Nettleton,  61  Conn.  593,  24  Atl.  977. 

EQ  JUR. — 21 


322  ANCILLARY    REMEDIES.  [Cll.    15 

and  their  production  at  the  hearing  of  the  cause  will  also  be  com- 
pelled.18 The  documents  must  be  in  defendant's  possession  or  pow- 
er,14 but  for  this  purpose  it  is  sufficient  that  they  are  admitted  to 
belong  to  him,  though  they  may  be  out  of  his  actual  custody.15  The 
possession,  therefore,  of  his  solicitor  or  agent,  or  of  any  other  person 
whose  possession  he  can  control,  is  equivalent  to  his  own.18  If,  how- 
ever, a  document  is  in  the  joint  possession  of  the  defendant  and  of 
some  other  person  who  is  not  before  the  court,  its  production  will 
not  be  compelled.17 

BILLS   TO   PERPETUATE    TESTIMONY. 

198.  The  object  of  a  bill  to  perpetuate  testimony  was  to 
preserve  evidence  when  it  'was  in  danger  of  being  lost 
before  the  matter  to  which  it  related  could  be  made  the 
subject  of  a  judicial  investigation.18 

It  sometimes  happens  that  a  person  entitled  presumptively  to 
some  future  interest  in  property  finds  his  title  impeached  or  threat- 
ened by  some  other  person  interested  in  disputing  it ;  and  yet,  in  con- 
sequence of  the  future  or  reversionary  interest  of  that  title,  the  law 
affords  him  no  means  of  asserting  or  establishing  it.  Meanwhile, 
the  very  testimony  on  which  his  title  depends  may  be  in  danger  of 
perishing  by  the  death  of  those  who,  if  alive,  would  be  able  to  give 
evidence  in  its  support.  Such  cases  strongly  appealed  to  that  maxim 
of  equity  which  declares  that  it  will  not  suffer  a  wrong  without  a 
remedy.  And  yet  the  exercise  of  a  jurisdiction  thus  to  perpetuate 
testimony  was  evidently  subject  to  the  strong  objection  that  the  depo- 
sitions so  taken  were  not  published  until  after  the  death  of  the  wit- 
nesses. The  evidence,  therefore,  was  not  given  under  the  legal  pen- 
alties attached  to  perjury.     For  this  reason,  chiefly,  courts  of  equity 

is  Adams,  Eq.  pp.  12,  13;   Wisner  v.  Dodds,  14  Fed.  656. 

i*  Hardman  v.  Ellames,  2  Mylne  &  K.  732. 

is  Clinch  v.  Financial  Corp.,  L.  It.  2  Eq  271;  Earl  of  Glengall  v.  Frazer,  2 
Hare,  99. 

is  Eages  v.  Wiswall,  2  Paige,  369;  Robbins  v.  Davis,  1  Blatchf.  238,  Fed. 
Cas.  No.  11,880. 

it  Edmonds  v.  Foley,  30  Beav.  282. 

is  Snell,  Eq.  p.  721. 


Ch.  15]  BILLS    TO    PERrETUATE    TESTIMONY.  323 

generally  did  not  entertain  such  bills,  except  where  it  was  absolutely 
necessary  to  prevent  a  failure  of  justice,19  or  where  the  preservation 
of  the  evidence  would  clearly  tend  to  defeat  future  litigation,  or  to 
defeat  such  litigation  if  commenced.20  If,  therefore,  it  were  possible 
that  the  matter  in  controversy  could  be  made  the  subject  of  imme- 
diate judicial  investigation  by  the  party  who  sought  to  perpetuate 
the  testimony,  there  was  no  reason  for  giving  him  the  advantage  of 
deferring  his  proceedings  to  a  future  time,  and  of  substituting  writ- 
ten depositions  for  viva  voce  evidence.21  Hence  suits  to  perpetuate 
testimony  were  rigidly  confined  to  cases  where  the  party  who  filed 
the  bill  could  not  bring  the  matter  into  immediate  judicial  investiga- 
tion, either  because  his  title  was  in  remainder,  or  because  he  himself 
was  in  possession  of  the  property.22 

A  mere  expectanc}',  as  that  of  an  heir  at  law,  was  not  considered 
sufficient  to  sustain  the  bill;  but  any  interest  which  the  law  would 
recognize,  however  small  or  remote,  even  though  contingent,  en- 
titled a  party  to  the  relief.23  So,  also,  a  bill  to  perpetuate  testimony 
was  allowed  only  where  some  right  to  property  was  involved,  as 
distinguished  from  an  office  or  dignity.24  The  perpetuation  of  testi- 
mony is  now  regulated  by  statutes  in  most  of  the  states,  and  inde- 
pendent suits  in  equity  are  no  longer  resorted  to  for  this  purpose; 
but  the  principles  on  which  courts  of  equity  acted  form  the  basis 
of  most  of  the  statutes  on  this  subject,  and  hence  they  are  still  im- 
portant.25 

is  Angell  v.  Angell,  1  Sim.  &  S.  83;  Booker  v.  Booker,  20  Ga.  781. 
20  Brooking  v.  Maudslay,  38  Ch-  Div.  63G. 
2i  Ellice  v.  Roupell,  32  Beav.  299. 

22  Booker  v.  Booker,  20  Ga.  781;  Baxter  v.  Farmer,  7  Ired.  Eq.  239;  Earl 
Spencer  v.  Peek,  L.  R.  3  Eq.  415;  Llanover  v.  Homfray,  19  Ch.  Div.  224; 
Hall  v.  Stout,  4  Del.  Ch.  269. 

23  Dursley  v.  Fitzhardinge,  6  Ves.  251. 

24  Townshend  Peerage  Case,  10  Clark  &  F.  289.  St.  5  &  6  Vict.  c.  69,  ex- 
tends the  right  to  perpetuate  testimony  in  favor  of  persons  having  a  mere 
expectancy  to  property,  or  to  any  dignity,  honor,  or  title. 

25  in  the  federal  courts,  depositions  in  perpetuam  rei  memoriam  are  directed 
to  be  taken  according  to  the  usages  of  chancery.    Rev.  St  U.  S.  §  866. 


o24  ANCILLARY    REMEDIES.  [Ch.   15 


EXAMINATION    OF    WITNESSES    DE    BENE    ESSE. 

199.  Either  party  to  a  litigation  actually  pending,  who 
•was  under  an  apprehension  either  that,  at  the  time  of  trial, 
important  -witnesses  abroad  might  still  be  there,  or  that 
important  "witnesses  of  advanced  years  might  then  be  dead, 
or  that  old  or  infirm  witnesses  might  then  be  unable  to 
travel,  could  file  a  bill  in  equity  praying  a  commission  to 
examine  the  -witnesses,  and  thus  preserve  their  evidence 
for  use  at  the  trial,  in  case  it  was  not  then  obtainable  in 
the  regular  way.26 

Originally,  common-law  courts  possessed  no  machinery  for  preserv- 
ing the  testimony  of  witnesses  described  in  the  black-letter  text,  and 
the  power  was  not  conferred  on  them  in  England  until  1830.27  Stat- 
utes in  all  the  states  confer  power  on  all  courts  of  general  original 
jurisdiction,  whether  of  law  or  equity,  to  issue  commissions  for  the 
examination  of  witnesses  at  home  or  abroad,  and  hence  independent 
suits  in  equity  have  become  obsolete.  While  bills  de  bene  esse  and 
bills  to  perpetuate  testimony  obviously  resembled  each  other,  there 
was  this  distinction:  Bills  de  bene  esse  could  be  brought  only 
during  the  pendency  of  an  action,  and  not  before; 28  and  they  might 
be  maintained  by  a  person  not  in  possession  of  the  property  in  dis- 
pute, as  well  as  by  a  person  in  possession.29 

26  The  phrase  "de  bene  esse"  is  a  term  applied  to  such  acts  or  proceedings 
as  are  done  or  permitted  to  take  place  in  an  action,  but  the  validity  or  effect 
of  which  depends  upon  some  subsequent  act  or  fact,  matter  or  proceeding. 
An  examination  of  witnesses  de  bene  esse  is  an  examination  of  them  out  of 
court,  before  the  trial,  subject  to  the  contingency  of  their  death,  removal,  or 
inability  to  attend  the  trial,  in  which  event  such  examination  is  good,  and 
the  deposition  may  be  read  in  evidence  on  the  trial;  otherwise  not.  Grah. 
Pr.  584;  1  Burrill,  Law  Diet.  (2d  Ed.)  212,  447. 

27  St.  1  Wm.  IV.  c.  22,  §  1. 

28  Angell  v.  Angell,  1  Sim.  &  S.  83;   Howard  v.  Folger,  15  Me.  447. 

29  Angell  v.  Angell,  1  Sim.  &  S.  83. 


Ch.    15]  KE    EXEAT.  325 


NE   EXEAT. 

200.  The  -writ  of  ne  exeat  is  a  -writ  issued  by  courts  of 
equity  to  prevent  a  person  from  leaving  the  state  until 
bail  is  given  to  obey  the  decree  of  the  court.30 

The  writ  was  originally  applied  only  for  political  objects  and 
purposes  of  state,  and  is  now  exercised  for  tlie  protection  of  private 
rights  with  much  caution  and  jealousy.31  As  a  general  rule,  the  writ 
is  granted  only  in  cases  of  equitable  debts  and  claims,  and  operates 
in  the  nature  of  equitable  bail.32  The  equitable  demand  must  be  cer- 
tain in  its  nature,  and  actually  and  presently  payable,  not  contingent 
or  prospective,33  or  unliquidated  and  uncertain.34  In  New  Jersey, 
the  writ  may  be  granted  before  suit  is  actually  pending.35 

To  the  rule  that  the  writ  will  issue  only  in  cases  of  equitable  de- 
mands, there  are  two  exceptions:  (1)  When  alimony  has  been  de- 
creed to  a  wife,  the  writ  is  procurable  to  restrain  the  husband  from 
evading  his  obligation  by  leaving  the  state.36  The  alimony  must, 
however,  be  actually  decreed,  and  not  appealed  from.  The  writ  could 
not  be  obtained  while  the  case  was  still  pending.37  (2)  When  there 
is  an  admitted  balance  due  from  defendant  to  plaintiff,  but  the  plain- 
tiff claims  a  larger  sum,  he  may  be  assisted  by  the  writ.38  This  case 
is  brought  within  the  purview  of  equity  by  its  jurisdiction  in  mat- 
ters of  account.39 

so  Cable  v.  Alvord,  27  Ohio  St.  666;  Gresham  v.  Peterson,  25  Ark.  377; 
Mitchell  v.  Bunch,  2  Paige,  617. 

si  Story,  Eq.  Jur.  §§  1465,  1467. 

32  Bonesteel  v.  Bonesteel,  28  Wis.  245;  Allen  v.  Hyde,  2  Abb.  N.  C.  197; 
Rice  v.  Hale,  5  Cush.  241;  Malcolm  v.  Andrews,  68  111.  100. 

ss  Anon.,  1  Atk.  521;   Rico  v.  Gualtier,  3  Atk.  500. 

34  Etches  v.  Lance,  7  Ves.  417;   Cock  v.  Ravie,  6  Ves.  283. 

ss  Clark  v.  Clark  (N.  J.  Ch.)  26  Atl.  1012. 

se  Read  v.  Read,  1  Ch.  Cas.  115;  Shaftoe  v.  Shaftoe,  7  Ves.  171;  Denton  v. 
Denton,  1  Johns.  Ch.  364. 

3T  Dawson  v.  Dawson,  7  Ves.  173;   Colverson  v.  Bloornfield,  29  Ch.  Div.  341. 

ss  Jones  v.  Sampson,  8  Ves.  593;  Jones  v.  Alephsin,  16  Ves.  471;  McGehee 
v.  Polk,  24  Ga.  406;   Porter  v.  Spencer,  2  Johns.  Ch.  169,  171. 

39  Allen  v.  Smith,  16  N.  Y.  418,  419;  MacDonough  v.  Gaynor,  18  N.  J.  Eq. 
249. 


326  ANCILLARY    REMEDIES.  [Ch.    15 


INTERPLEADER. 

201.  Where  two  or  more  persons,  between  whom  there 
is  privity  of  title,  claim  the  same  thing,  debt,  or  duty  from 
a  third  person,  such  third  person,  if  he  does  not  himself 
claim  any  interest  in  the  matter,  and  has  incurred  no  in- 
dependent liability  to  any  of  them,  may  exhibit  a  bill  of 
interpleader  against  them,  stating  their  several  claims  and 
his  own  position  in  regard  to  the  matter,  and  praying  that 
the  claimants  may  interplead,  so  that  the  court  may  ad- 
judge to  whom  the  thing,  debt,  or  duty  belongs;  and,  if 
any  suits  at  law  had  been  brought  against  him,  he  might 
also  have  prayed  that  the  claimants  might  be  restrained 
from  those  suits  or  actions  till  the  right  was  determined.40 

The  remedy  of  interpleader  existed  also  at  common  law,  but  it  had 
a  very  narrow  range  of  application,  lying  only  in  cases  where  posses- 
sion had  arisen  from  accident  or  bailment.  Equity,  therefore,  has 
jurisdiction  because  of  the  double  claim  made  on  the  complainant 
giving  rise  to  a  multiplicity  of  actions.41  It  is  not  necessary  that 
suit  should  have  been  actually  commenced  against  complainant,  and 
it  is  sufficient  that  conflicting  claims  have  been  made  against  him, 
and  that  he  is  in  danger  of  being  molested.42  But  after  judgment 
at  law,  and  after  the  right  is  thus  determined,  a.  court  of  equity 
cannot  interfere  upon  the  footing  of  interpleader.43 

The  right  to  file  a  bill  of  interpleader  in  equity  exists,  though  both 
claims  are  legal,  or  one  is  legal  and  the  other  is  equitable.44  In 
many  of  the  states,  statutes  now  exist  permitting  a  defendant  sued 
on  contract,  or  for  specific  real  or  personal  property,  who  claims  no 

«  Mitf.  Eq.  PL  58,  59;  Adams,  Eq.  p.  202. 

4i  Crawford  v.  Fisher,  1  Hare,  43G,  441 ;  School  District  No.  1  v.  Weston, 
31  Mich.  85;   Angell  v.  Hadden,  15  Ves.  244. 

42  Angell  v.  Hadden,  15  Ves.  244;  Gibson  v.  Goldthwaite,  7  Ala.  281;  Yar- 
brough  v.  Thompson,  3  Smedes  &  M.  (Miss.)  291;  Providence  Bank  v.  Wilkin- 
son, 4  R.  I.  507. 

43  Yarbrough  v.  Thompson,  3  Smedes  &  M.  (Miss.)  291;  McKinney  v.  Kukn, 
59  Miss.  18G;   Larabrie  v.  Brown,  20  Law  J.  Eq.  005. 

44  Morgan  v.  Marsack,  2  Mer.  107;   Lowndes  v.  Cornford,  18  Ves.  299. 


Ch.    15]  INTERPLEADER.  327 

interest  id  the  subject-matter,  to  apply  to  the  court  to  substitute  in 
his  place  a  third  person  who  makes  against  him  a  demand  for  the 
same  debt  or  property.45  The  principles  governing  this  statutory 
right  of  interpleader  are  in  the  main  the  same  as  those  which  con- 
trolled courts  of  equity,  independent  of  statutes,  and  they  will  now 
be  considered. 

SAME— ESSENTIAL    ELEMENTS. 

202.  Independent  of  statute,  the  following  conditions 
must  exist  to  give  a  right  to  an  interpleader  in  equity: 

(a)  The   same   thing,  debt,  or   duty   must  be   claimed 

by  both  the  persons   against  whom  the  relief  is 
asked. 

(b)  Privity  of  title  must  exist  between  the  claimants. 

(c)  The  party  seeking  relief  must  claim  no  interest  in 

the  matter. 

(d)  He   must  have  incurred  no  independent  personal 

liability  to  either  claimant.46 

1.  The  same  thing,  debt,  or  duty  must  be  claimed  by  both  claim- 
ants. If  the  subject  of  dispute  has  a  bodily  existence,  no  difficulty 
can  arise  as  to  identity.  Where,  however,  the  subject-matter  is 
a  chose  in  action,  it  becomes  necessary  to  determine  what  is  iden- 
tity, and  this  is  a  question  attended  occasionally  with  much  diffi- 
culty, and  which  in  each  case  must  be  determined  by  the  original 
nature  and  constitution  of  the  debt.47  Thus,  a  purchaser  of  goods 
who  has  accepted  a  draft  drawn  on  him  by  a  bank  for  the  purpose 
of  placing  it  in  funds  to  meet  the  purchase  price,  but  which  funds 
were  never  so  applied,  because  the  bank  became  insolvent,  cannot 
compel  the  seller  of  the  goods  and  a  bona  fide  holder  of  the  draft 
to  interplead,  since  one  claims  for  goods  sold  and  the  other  on 
the  draft.48     The  amount  in  dispute  need  not,  however,  be  iden- 

45  Civ.  Code  N.  Y.  §  820.    The  same  statute,  in  substance,  is  enacted  in  all 
the  code  states. 
«  Adams,  Eq.  p.  203;  3  Pom.  Eq.  Jur.  §  1322. 

47  Adams,  Eq.  p.  203. 

48  Bassett  v.  Leslie,  123  N.  Y.  396,  25  N.  E.  3SG.    So,  also,  where  a  purchaser 
of  goods  was  sued  by  the  seller  for  the  price,  and  was  also  sued  in  trover  by 


328  ANCI.  l.AKY    REMEDIES.  [Cll.    15 

ti« :al.49  Thus,  a  landowner  whose  property  has  been  taxed  in  differ- 
ent amounts  by  two  towns  may  maintain  an  interpleader  to  compel 
them  to  litigate  wldch  one  has  jurisdiction  to  levy  the  tax,  notwith- 
standing the  difference  in  amount.50 

2.  There  must  be  privity  of  title  between  the  claimants.  They 
must  derive  title  from  a  common  source,  or  one  must  derive  title 
from  the  other.  Where  there  was  no  privity  of  title  between  the 
claimants  of  the  thing,  debt,  or  duty,  equity  would  afford  no  relief 
to  the  person  holding  the  property,  but  he  was  compelled  to  defend 
himself  as  well  as  he  could  at  law.  Equity  refused  to  interfere  in 
such  a  case,  because  it  would  not  assume  the  right  to  try  merely 
legal  titles  upon  a  controversy  between  different  parties,  where 
there  was  no  privity  of  contract  between  them  and  the  third  per- 
son who  called  for  the  interpleader.51  This  rule  has  been  criticised, 
and  the  proposition  has  been  advanced  that  complainant  need  only 
show  that  he  cannot  determine,  without  hazard  to  himself,  to  which 
of  the  claimants  the  property  belongs.52  Under  the  statutes  here- 
tofore cited,  it  would  seem  that  privity  of  title  is  unnecessary. 

3.  Complainant  must  claim  no  interest  in  the  subject-matter.  He 
must  be  a  mere  stakeholder,  entirely  indifferent  between  the  con- 
flicting claimants.53  Hence  one  who  claims  a  commission  out  of 
the  property  .or  fund  in  his  possession,  or  a  lien  thereon,  cannot 

a  person  who  alleged  himself  to  be  the  real  owner,  it  was  held  not  to  be  a 
case  of  interpleader,  for  the  parties  were  not  seeking  the  same  thing.  One 
was  endeavoring  to  obtain  the  price  of  the  goods,  and  the  other  damages  for 
their  conversion.  Glyn  v.  Duesbury,  11  Sim.  139.  Other  cases  involving 
Identity  of  subject-matter:  Wilkinson  v.  Searcy,  74  Ala.  243;  Blue  v.  Watson, 
59  Miss.  G19;  Dodd  v.  Bellows,  29  N.  J.  Eq.  127;  City  Bank  v.  Bangs,  2 
Paige,  570. 

«  School  Dist.  No.  1  v.  Weston,  31  Mich.  85;  Newhall  v.  Kastens,  70  111. 
156.    Contra,  Glyn  v.  Duesbury,  11  Sim.  139,  148. 

so  Dorn  v.  Fox,  Gl  N.  Y.  2G4. 

si  Story,  Eq.  Jur.  §  820;  Third  Nat.  Bank  v.  Skillings  Lumber  Co.,  132 
Mass.  410;  Pearson  v.  Cardon,  2  Russ.  &  M.  G06,  609-612;  Crawshay  v.  Thorn- 
ton, 2  Mylne  &  C.  1,  19-24. 

B2  See  Crane  v.  McDonald,  118  N.  Y.  G48,  23  N.  E.  991. 

03  Wing  v.  Spaulding,  G4  Vt.  83,  23  Atl.  615;  Baltimore  &  O.  R.  Co.  v. 
Arthur,  90  N.  Y.  234;  Appeal  of  Bridesburg  Manuf'g  Co.,  10G  Pa.  St.  275; 
Killian  v.  Ebbinghaus,  110  U.  S.  508,  4  Sup.  Ct.  232;  Williams  v.  Matthews, 
47  N.  J.  Eq.  196,  20  Atl.  201;   Sprague  v.  West,  127  Mass.  471. 


Ch.    15]  INTERPLEADER.  329 

maintain  a  bill  of  interpleader.54  So,  also,  one  who  is  not  in  pos- 
session of  the  property  which  is  the  subject  of  claim,  or  who  has 
put  one  of  the  claimants  in  possession,  cannot  maintain  a  bill  of 
interpleader.65 

4.  Complainant  must  not  have  incurred  any  independent  personal 
liability  to  either  claimant.58  Thus,  a  sheriff  who  seizes  property 
by  virtue  of  an  execution  cannot  compel  a  claimant  of  the  property 
to  interplead  with  the  execution  creditor,  since  the  sheriff  has 
incurred  a  liability  to  the  claimant  if  it  should  turn  out  that  the 
property  is  his.57  So,  also,  where  a  tenant  is  sued  by  his  landlord, 
or  an  agent  by  his  principal,  a  claim  by  a  third  person  adverse  to 
the  landlord  or  principal  will  not  warrant  a  bill  of  interpleader,58 
unless  it  originates  in  the  landlord's  or  principal's  own  act,  done 
after  the  commencement  of  the  tenancy  or  agency,  creating  a  doubt 
as  to  who  is  the  true  landlord  or  principal  to  whom  the  tenancy  or 
agency  refers.39  In  like  manner,  a  bill  of  interpleader  will  not  lie 
if  the  party  seeking  relief  has  acknowledged  title  in  one  of  the 
claimants,  and  has  thus  incurred  an  independent  liability  to  him.60 

54  Crass  v.  Memphis  &  C.  R.  Co.,  96  Ala.  447,  11  South.  480;  Mitchell  v. 
Hayne,  2  Sim.  &  S.  63. 

53  Burnett  v.  Anderson,  1  Mot.  405;  Killian  v.  Ebbinghaus,  110  U.  S.  56S, 
4  Sup.  Ct.  232;  Stone  v.  Reed,  152  Mass.  179,  25  N.  E.  49;  Mt.  Holly,  L.  & 
M.  Turnpike  Co.  v.  Ferree,  17  N.  J.  Eq.  117. 

56  Crawshay  v.  Thornton,  2  Mylne  &  C.  1,  19;  Cullen  v.  Dawson,  24  Minn. 
66;  National  Ins.  Co.  v.  Pingrey,  141  Mass.  411,  6  N.  E.  93;  Wakeman  v. 
Kingsland,  46  N.  J.  Eq.  113,  18  Atl.  680;   Tyus  v.  Rust,  37  Ga.  574. 

5T  Slingsby  v.  Boulton,  1  Ves.  &  B.  334;  Shaw  v.  Coster,  8  Paige  (N.  Y.) 
339.  Statutes  in  most  of  the  states  give  a  claimant  of  property  seized  on 
execution  the  right  to  intervene  and  litigate  his  title  with  the  execution 
creditor. 

ss  Dungey  v.  Angove,  2  Ves.  Jr.  304;  Snodgrass  v.  Butler,  54  Miss.  45;  De 
Zouche  v.  Garrison,  140  Pa,  St.  430,  21  Atl.  450.  These  cases  rest  on  the 
ground  that  the  tenant  or  the  agent  is  estopped  to  deny  the  title  of  his  land- 
lord or  of  his  principal. 

69  Cowtan  v.  Williams,  9  Ves.  107;  Gibson  v.  Goldthwaite,  7  Ala.  281; 
Ketcham  v.  Brazil  Block  Coal  Co.,  88  Ind.  515. 

eo  Crawshay  v.  Thornton,  2  Mylne  &  C.  1,  19-24;  Jew  v.  Wood,  Craig  &  P. 
185;  Pfister  v.  Wade,  56  Cal.  43. 


ooU  ANCILLARY    REMEDIES.  [Cll.    15 


RECEIVERS. 

203.  A  receiver  is  an  indifferent  person  between  the 
parties,  appointed  by  a  court  of  equity  to  take  charge  of 
the  fund  or  property  in  controversy,  when  it  does  not 
seem  proper  that  either  party  should  retain  it.61 

Unlike  discovery  and  kindred  ancillary  remedies,  the  law  of  re- 
ceivers is  a  subject  of  growing  importance,  and  it  furnishes  one  of 
the  most  remarkable  examples  of  the  expansive  powers  of  equita- 
ble remedies.  Though  of  English  origin,  the  remedy  has  been  largely 
developed  in  this  country,  chiefly  during  the  past  quarter  of  a 
century.  The  object  of  a  receivership  is  to  preserve  the  fund  or 
property  from  removal  beyond  the  jurisdiction,  or  from  spoliation, 
waste,  or  deterioration,  pending  litigation  or  during  the  minority 
of  infants;  °2  and  in  this  respect  it  resembles  the  interlocutory  in- 
junction. The  receiver  is  an  ollficer  of  the  court  appointing  him, 
and  not  an  agent  of  the  parties.03  His  possession  is  the  possession 
of  the  court,64  and  any  attempt  to  disturb  it  is  a  contempt  punish- 
able as  such.65 

The  appointment  of  a  receiver,  like  the  granting  of  an  interlocu- 
tory injunction,  determines  nothing  as  to  the  ultimate  rights  of  the 
parties;68  and,  in  dealing  with  an  application  for  the  appointment 

6i  Booth  v.  Clark,  17  How.  322;  Baker  v.  Bachus'  Adm'r,  32  111.  79; 
Chautauque  Co.  Bank  v.  White,  6  Barb.  589;  High,  Ilec  §  1;  Beach,  Rec.  §  1; 
Kerr,  Rec.  p.  2. 

02  Myers  v.  Estell,  48  Miss.  401;  Taylor  v.  Philadelphia  &  R.  R.  Co.,  7  Fed. 
385;  Ellis  v.  Boston,  H.  &  E.  R.  Co.,  107  Mass.  28;  Beverley  v.  Brooke,  4 
Grat.  187. 

63  Davis  v.  Duke  of  Marlborough,  2  Swanst.  125;  Davis  v.  Gray,  16  Wall. 
218;  Hooper  v.  Winston,  24  111.  353;  Morrill  v.  Noyes,  56  Me.  463. 

«  Ellicott  v.  Warford,  4  Md.  85;  Runyon  v.  Farmers'  &  M.  Bank,  4  N.  J. 
Eq.  480. 

eo  Beverley  v.  Brooke,  4  Grat  1S7,  211;  Hazelrigg  v.  Bronaugh,  78  Ky. 
62;  Chafee  v.  Quidnick  Co.,  13  R.  I.  442;  Secor  v.  Toledo,  P.  &  W.  R.  Co., 
7  Biss.  513,  Fed.  Cas.  No.  12,605. 

ee  Hugonin  v.  Basely,  13  Ves.  107;  Beverley  v.  Brooke,  4  Grat  208;  Ellis 
v.  Boston,  H.  &  E.  R.  Co.,  107  Mass.  1;  Ex  parte  Dunn,  8  Rich.  (N.  S.)  207; 
Chase's  Case,  1  Bland,  206-213;  Leavitt  v.  Yates,  4  Edw.  Ch.  162. 


Ch.   15]  RECEIVERS.  331 

of  a  receiver,  it  is  the  duty  of  the  court  to  confine  itself  strictly  to 
the  point  upon  which  it  is  called  upon  to  decide,  and  not  to  go  into 
the  merits  of  the  cause.67 

The  appointment  of  a  receiver  is  said  to  be  discretionary  with 
the  court; 68  but,  in  exercising  that  discretion,  the  court  is  controlled 
by  these  two  principles:  (1)  Plaintiff  must  show  that  he  has  either 
a  clear  right  to  the  property  itself,  or  that  he  has  some  lien  upon 
it,  or  that  the  property  constitutes  a  special  fund  to  which  he  has 
a  right  to  resort  for  the  satisfaction  of  his  claim.  (2)  Plaintiff  must 
further  show  that  defendant  obtained  possession  of  the  property  by 
fraud,  or  that  the  property  itself,  or  the  income  arising  from  it,  is 
in  danger  of  loss  from  the  neglect,  waste,  misconduct,  or  insolvency 
of  the  defendant.69 


SAME— IN  WHAT    CASES   RECEIVERS  WILL  BE  APPOINTED. 

204.  Subject  to  the  foregoing  rules,  a  receiver  will  be 
appointed:70 

(a)  Where  the  person    entitled    to    the    possession    of 

property  pending  a  litigation  or  a  judicial  pro- 
ceeding is  incompetent  to  manage  or  care  for  it; 
as  in  the  case  of  infants,  lunatics,  etc. 

(b)  Where  each  of  the  parties  litigant  is  equally  enti- 

tled to  possession,  but  the  circumstances  are  such 
that  it  is  not  proper  for  either  of  them  to  retain 
control;  as  in  the  case  of  litigation  between  part- 
ners, cotenants,  etc. 

(c)  Where  the  party  entitled  to  the  possession  of  prop- 

erty pending  litigation  is  misapplying  or  spoliat- 
es Skinners'  Co.  v.  Irish  Soc,  1  Mylne  &  C.  164. 
es  Skip  v.  Harwood,  3  Atk.  564;   Sage  v.  Memphis  &  L.  R.  11.  Co.,  125  U.  S. 

361,  8  Sup.  Ct  887;  Chicago  &  A.  O.  &  M.  Co.  v.  United  States  Petroleum  Co., 

57  Pa.  St  83;  Ashurst  v.  Lehman,  86  Ala.  371,  5  South.  731. 
69  Mays  v.  Rose,  Freem.  Ch.  (Miss.)  703;    Ellett  v.  Newman,  92  N.  C.  519; 

Blondheim  v.  Moore,  11  Md.  365;   Ashurst  v.  Lehman,  86  Ala.  371,  5  South. 

731;   Elwood  v.  Bank,  41  Kan.  475,  21  Pac.  673;    Bainbrigge  v.  Baddeley,  3 

Macn.  &  G.  413;   Owen  v.  Homan,  3  Macn.  &  G.  378,  412. 
703  Pom.  Eq.  Jur.  §§  1332-1334. 


332  ANCILLARY    REMEDIES.  [Cll.    15 

ing  it,  to  the  detriment  of  the  other  party  claim- 
ing an  equitable  interest  therein. 

(d)  By  virtue  of  statute,  in  proceedings  to  dissolve  and 

wind  up  corporations. 

(e)  To  reach  property  of  a  judgment  debtor  which  can- 

not be  seized  on  execution. 

1.  The  court  will,  upon  a  proper  case  being  made  out,  protect  the 
estate  of  an  infant  by  appointing  a  receiver;  as,  where  no  guardian 
exists,71  or  where  the  parent  of  the  infant,  in  possession  of  his  prop- 
erty, is  squandering  it72  So,  also,  in  the  case  of  a  lunatic,  where 
the  person  appointed  as  guardian  or  committee  declines  to  act.73 
It  was  also  the  practice  of  courts  of  chancery  to  appoint  a  receiver 
of  a  decedent's  estate  pending  litigation  to  probate  his  will ; 74  but 
now  the  practice  has  fallen  into  disuse,  because  courts  of  probate 
have  been  empowered  by  statute  to  appoint  a  special  administrator 
during  such  a  contest. 

2.  A  receiver  of  a  partnership  will  be  appointed,  pending  a  suit 
for  dissolution,  where  it  appears  that  complainant  is  probably  enti- 
tled to  the  dissolution,  and  the  partners  cannot  agree  among  them- 
selves as  to  the  disposition  and  control  of  the  firm  property.75  So, 
also,  after  a  dissolution  of  the  firm,  whether  by  mutual  agreement 
or  by  the  death  of  one  of  its  members,  a  receiver  will  be  appointed 
where  it  appears  that  the  partners  in  possession  are  misconducting 
themselves,  or  that  the  assets  are  in  peril.76  As  between  tenants 
in  common,  the  general  rule  is  that  a  receiver  will  not  be  appointed 

7i  Hicks  v.  Hicks,  3  Atk.  273. 

72  Butler  v.  Freemau,  1  Amb.  303;  In  re  Cormicks,  2  Ir.  Eq.  264. 

73  Ex  parte  Warren,  10  Ves.  621.  Also,  after  lunatic's  death,  receiver  will 
be  appointed  until  determination  of  question  as  to  who  is  entitled  to  estate. 
In  re  Colvin,  3  Md.  Ch.  288. 

74  King  v.  King,  6  Ves.  172;   Atkinson  v.  Henshaw,  2  Ves.  &  B.  85. 

75  McElvey  v.  Lewis,  76  N.  Y.  373;  Jordan  v.  Miller,  75  Va.  442;  New  v. 
Wright,  44  Miss.  202;  Allen  v.  Hawley,  6  Fla,  164;  Barnes  v.  Jones,  91  Ind. 
161.  Wrongful  exclusion  of  one  partner  from  management  of  firm  is  ground 
for  a  receiver.  Const  v.  Harris,  1  Turn.  &  R.  517;  Katz  v.  Brewington  (Md.) 
20  Atl.  139. 

76  Word  v.  Word,  90  Ala.  81,  7  South.  412;  Bufkin  v.  Boyce,  104  Ind.  53, 
3  N.  E.  615. 


Ch.  15]  RECEIVERS.  333 

unless  one  excludes  the  other  from  the  possession  and  enjoyment  of 
the  property; 77  but,  as  between  tenants  in  common  of  mining  prop- 
erty, a  more  liberal  rule  prevails.78 

3.  The  court  may,  on  a  proper  showing,  dispossess  an  executor 
or  trustee,  and  appoint  a  receiver,  but  it  will  not  do  so  on  slight 
grounds.79  Misconduct,  waste  of  trust  property,  and  insolvency 
have  been  held  sufficient  grounds.80 

In  England,  and  those  states  where  the  legal  title  to  real  estate 
vests  in  the  mortgagee,  a  receiver  will  not  be  appointed  at  his  in- 
stance to  take  possession  of  the  mortgaged  premises  and  of  the 
rents  and  profits,  since  he  can  recover  them  in  ejectment;81  but, 
in  those  states  where  a  mortgage  is  regarded  as  a  mere  lien  on 
the  land,  the  mortgagee  is  entitled  to  a  receiver,  pending  foreclosure 
proceedings,  where  the  mortgaged  premises  are  an  inadequate  se- 
curity, the  mortgagor  is  insolvent,  and  there  is  good  reason  to  believe 
that  the  premises  will  be  wasted  or  deteriorated  in  his  hands.82 

On  similar  principles, — insolvency  of  the  mortgagor  and  the  in- 
adequacy of  the  security, — a  court  of  equity  will,  at  the  suit  of 
bondholders  secured  by  mortgage  on  the  property  of  a  railroad  com- 
pany, appoint  a  receiver  in  aid  of  the  foreclosure  proceedings.83  And 
in  these  cases  the  functions  and  duties  of  the  receiver  are  not  merely  to 
keep  the  property  in  his  custody,  but  to  operate  and  manage  it  until 

77  Norway  v.  Rowe,  19  \Tes.  159;  Williams  v.  Jenkins,  11  Ga.  595;  Pierce 
v.  Pierce,  55  Mich.  629,  22  N.  W.  81;  Baughman  v.  Reed,  75  Cal.  319,  17 
Pac.  222;  Low  v.  Holmes,  17  N.  J.  Eq.  150;  Vangban  v.  Vincent,  88  N.  C.  116; 
Varnum  v.  Leek,  65  Iowa,  751,  23  N.  W.  151. 

78  Jefferys  v.  Smith,  1  Jac.  &  W.  298;   Parker  v.  Parker,  82  N.  C.  165. 

79  Smith  v.  Smith,  2  Younge  &  C.  Exch.  361;  Haines  v.  Carpenter,  1 
Woods,  265,  266,  Fed.  Cas.  No.  5,905;   Hill  v.  Arnold,  79  Ga.  367. 

so  Anon.,  12  Ves.  4;  Stairley  v.  Rabe,  McMul.  Eq.  (S.  C.)  22;  Price's  Ex'r 
v.  Price's  Ex'rs,  23  N.  J.  Eq.  428;  Calhoun  v.  King,  5  Ala.  525;  Hagenbeck  v. 
Hagenbeck  Zoological  Arena  Co.,  59  Fed.  14. 

si  Berney  v.  Sewell,  1  Jac.  &  W.  648;  Sturch  v.  Young,  5  Beav.  557;  Williams 
v.  Robinson,  16  Conn.  517. 

82  Lowell  v.  Doe,  44  Minn.  144,  46  N.  W.  297;  Hollenbeck  v.  Donnell,  94  N. 
Y.  342;  United  States  Trust  Co.  v.  New  York,  W.  S.  &  B.  R.  Co.,  101  N.  Y. 
483,  5  N.  E.  316;   Schreiber  v.  Carey,  48  Wis.  208,  4  N.  W.  124. 

ss  Mercantile  Trust  Co.  v.  Missouri,  K.  &  T.  R.  Co.,  36  Fed.  221;  Pennsyl- 
vania Co.  for  Insurance  on  Lives  v.  American  Trust  Co.,  2  U.  S.  App.  606, 
5  C.  C.  A.  53,  and  55  Fed.  131;  High,  Rec.  §  376  et  seq. 


334  ANCILLARY    REMEDDCS.  [Ch.    15 

the  litigation  is  finally  terminated,  being  subject  to  all  the  responsi- 
bilities of  a  common  carrier.84  In  exceptional  cases,  courts  of  equity 
have  even  authorized  the  receiver  to  extend  and  complete  lines  of 
road,  when  necessary  to  save  a  land  grant  or  to  the  successful 
operation  of  the  road.85  One  remarkable  result  of  this  extension 
of  the  powers  of  receivers  should  be  noticed  in  this  connection: 
The  indebtedness  incurred  by  the  receiver,  in  thus  operating  and 
managing  the  road,  is  entitled  to  priority  over  the  debt  of  the  bond- 
holders, secured,  as  it  is,  by  mortgage.  Having  requested  the  court 
to  take  control  of  the  property,  and  maintain  it  as  a  going  concern 
for  their  benefit,  they  are  estopped  from  denying  that  the  expenses 
of  such  management  are  entitled  to  priority,  forming,  as  they  do. 
a  part  of  the  costs  of  the  litigation.86  To  enable  the  receiver  to 
raise  funds  for  the  operation  and  maintenance  of  the  road,  the  court 
generally  authorizes  the  issuance  of  receivers'  certificates;  and,  on 
the  distribution  of  the  proceeds  of  sale  of  the  mortgaged  premises, 
the  holders  of  these  certificates  are  entitled  to  priority  over  the 
bondholders.87 

4.  The  common  law  furnished  a  remedy  by  writ  of  quo  warranto 
for  the  dissolution  of  a  corporation.  Independent  of  statute,  there- 
fore, courts  of  equity  have  no  power  to'  dissolve  a  corporation,  wind 

84  Beach,  Rec.  §  359. 

ss  Kennedy  v.  St.  Paul  &  P.  It.  Co.,  5  Dill.  519,  Fed.  Cas.  No.  7,707;  Jerome 
v.  McCarter,  94  U.  S.  734,  738  (canal);  Bank  of  Montreal  v.  Chicago,  C.  & 
W.  R.  Co.,  48  Iowa,  518. 

ss  Hale  v.  Nashua  &  L.  R.  Co.,  60  N.  H.  333;  Miltenberger  v.  Logansport 
Ry.  Co.,  106  U.  S.  286,  1  Sup.  Ct  140;  Central  Trust  Co.  v.  Wabash,  St.  L.  & 
P.  Ry.  Co.,  46  Fed.  26;  Kneeland  v.  American  Loan  &  Trust  Co.,  136  U.  S. 
89,  10  Sup.  Ct.  950.  Some  of  the  cases  hold  that  the  expenses  of  a  receiver- 
ship are  entitled  to  priority  over  the  mortgage  bondholders,  though  they  have 
not  consented  to  the  receivership  or  the  expenses,  on  the  theory  that  railroads 
are  quasi  public  corporations,  and  that  public  necessities  require  their  con- 
tinued operation.  Meyer  v.  Johnston,  53  Ala.  237,  348;  Kneeland  v.  Bass 
Foundry  &  Mach.  Works,  140  U.  S.  592,  11  Sup.  Ct.  857;  Kneeland  v.  Duce, 
141  U.  S.  491,  12  Sup.  Ct.  32.  This  last  proposition  has  been  severely  criti- 
cised, on  the  ground  that  to  give  priority  to  the  receivership  expenses  over  a 
mortgage  of  earlier  date  is,  in  effect,  impairing  the  obligation  of  a  contract 
in  violation  of  the  federal  constitution. 

8T  Credit  Co.  of  London  v.  Arkansas  Cent.  R.  Co.,  15  Fed.  46;  Union  Trust 
Co.  v.  Illinois  M.  Ry.  Co.,  117  U.  S.  437,  6  Sup.  Ct.  809. 


Ch.  15]  RECEIVERS.  335 

up  its  affairs,  sequestrate  its  property,  and  in  that  connection  appoint 
a  receiver.88  In  most  of  the  states  of  the  Union,  however,  this  power 
has  been  conferred  by  statute;  but  the  courts  are  very  cautious  in 
its  exercise,89  and  the  receiver  is  regarded  in  the  light  of  a  trustee 
for  the  creditors  and  stockholders.90 

5.  A  judgment  creditor,  who  has  issued  an  execution  on  his  judg- 
ment which  has  been  returned  unsatisfied,  has  a  right  to  come  into 
equity  for  the  appointment  of  a  receiver  of  his  judgment  debtor's 
property  which  cannot  be  sold  under  execution  at  law.91  The  re- 
ceiver in  these  cases  is  vested,  not  only  with  the  title  and  rights 
possessed  by  the  judgment  debtor,  but  also  with  the  right  of  the 
judgment  creditor  to  set  aside  fraudulent  conveyances  made  by  the 
debtor.92 

ss  Decker  v.  Gardner,  124  N.  Y.  334,  26  N.  E.  814;  Neall  v.  Hill,  16  Cal.  145; 
Folger  v.  Columbian  Ins.  Co.,  99  Mass.  267. 

89  High,  Rec.  §  2S9;  Oakley  v.  Paterson  Bank,  2  N.  J.  Eq.  173. 

»o  High,  Rec.  §§  314,  315;  Curtis  v.  Leavitt,  15  N.  Y.  44;  Attorney  General 
v.  Guardian  Mut  Life  Ins.  Co.,  77  N.  Y.  272. 

9i  Curling  v.  Marquis  Townshend,  19  Ves.  632;  Bloodgood  v.  Clark,  4 
Paige,  574;  Osborn  v.  Heyer,  2  Paige,  342;  Johnson  v.  Tucker,  2  Tenn.  Ch. 
398.  In  states  where  the  code  procedure  prevails,  statutes  exist  providing 
for  the  examination  of  the  judgment  debtor  concerning  his  property  after  the 
execution  has  been  returned  unsatisfied,  and  authorizing  the  appointment  of  a 
receiver  of  property  discovered  on  such  examination.  These  proceedings  are 
known  as  proceedings  supplementary  to  execution,  and  have  to  a  certain 
extent  superseded  judgment  creditors'  bills. 

92  Green  v.  Bostwick,  1  Sandf.  Ch.  185;  Porter  v.  Williams,  9  N.  Y.  142; 
Hamlin  v.  Wright,  23  Wis.  491. 


TABLE  OF  CASES  CITED. 


A 

Page 

Abbey  v.  Deyo,  44  N.  Y.  347 160 

Abbott  v.  Creal,  56  Iowa,  175,  9  N.  W.  115 143 

Abell    v.    Howe,    43    Vt.    403 89 

Aberdeen  Ry.  Co.  v.  Blakie,  1  Macq.  461 150 

Abernethy  v.  Hutchinson,  1  Hall.  &  T.  28,  40,  3  Law  J  Ch.  209 30S 

Acer  v.  Hotchkiss,  97  N.  Y.  395,  403 256 

v.  Westcott,  46  N.  Y.  384 87 

Ackroyd  v.    Sraithson,    1   Brown,    Ch.   503,  505 77,  192 

Acton  v.  Waddingtou,  46  N.  J.  Eq.  16,  18  Atl.  356 233 

Adair  v.  Adair,  22  Or.  115,  29  Pac.  193 215 

Adams  v.  Adams,  17  Or.  247,  20  Pac.  033 2S3 

v.  Chicago,  B.  &  N.  R.  Co.,  39  Minn.  286,  39  N.  W.  629 306 

v.  Clifton,  1   Russ.  297 210 

v.  Corriston,    7    Minn.    456    (Gil.    365) 215 

V.Drake,    11    Cush.    (Mass.)    501 255 

v.  Hayden,  60  Tex.  223 91 

v.  Manning,  48  Conn.  477 16 

v.  Messinger,  147  Mass.  1S5,  17  N.  E.  491 29,  267 

v.  Parker,    12    Gray,    53 218 

v.  Pilcher,   92   Ala.    474,   S    South.    757 21S 

v.  Sayre,   70  Ala.   318 148 

v.  Schiffer,  11  Colo.  15,  17  Pac.  21 134 

v.  Smilie,  50  Vt.  1 225 

v.  Valentine,  33   Fed.   1 277 

v.  Wheeler,  122  Ind.  251,  23  N.  E.  760 127 

Adams  and  Kensington  Vestry,  In  re,  27  Ch.  Div.  394 175 

Adams'  Appeal,  113  Pa.  St.  449,  6  Atl.  100 249 

Adams'  Trusts,  In  re,  12  Ch.  Div.  634 171 

Aderholt  v.  Embry,  78  Ala.   1S5 250 

Adler  v.  Pin,  SO  Ala.  351,  354,  355 50 

Adsit  v.  Adsit,  2  Johns.   Ch.  448 55 

Aetna  Life  Ins.  Co.  v.  Bishop,  69  Iowa,  645,  29  N.  W.  761 SS 

v.  Middleport,  124  U.  S.  534,  8  Sup.  Ct.  625 254,  256 

Agar  v.  Fairfax,  2  White  &  T.  Lead.  Cas.  Eq.  865,  905,  915 261,  262 

Agnew  v.  Bell,  4  Watts  (Pa.)  33 253 

Ahrend   v.    Odiorne,    118    Mass.    261 232,233 

eq.jur.— 22  (337) 


338  CASES    CITED. 

Page 

Aiken  v.  Gale,  37  N.  H.  501 225 

Akerly    v.    Vilas,    21    Wis.   88 140 

Akin  v.  Kellogg,  119  N.  Y.  441,  440,  23  N.  E.  1040 134 

Akins  v.   Hill,   7  Ga.   573,   577 43 

Alderson  v.  White,  2  De  Gex  &  J.  97 217 

Aldred's  Case,  9  Coke,   58b 303 

Aldrich  v.  Cooper,  8  Ves.  382,  2  White  &  T.  Lead.  Cas.  Eq.  80 256 

Aldridge  v.  Aldridge,  120  N.  Y.  614,  24  N.  E.  1022 145 

Alexander  v  .Ellison,  79  Ky.  148 231 

v.  Hill,  S8  Ala.  487,  7  South.  238 221 

v.  Hooks,  84  Ala.  605,  4  South.  417 234 

v.  Merrick,  121  111.  600,  614,  13  N.  E.  190 37 

v.  Wunderlich,  118  Pa.  St  610,  12  Atl.  580 275,  278 

Aleyn  v.  Belchier,  1  Eden,  132,  1  White  &  T.  Lead.  Cas.  Eq.  573 161 

Alkire  v.  Alkire,  134  Ind.  350,  32  N.  E.  573 161 

Allen  v.  Allen,  47  Mich.  79,  10  N.  W.  113;    13  S.  C.  512 43,  64,  65 

v.Anderson,    5    Hare,    163 54 

v.  Buchanan   (Ala.)   11   South.   777 30 

v.  Culver,  3  Denio,   2S4 251 

v.  Elder,  76  Ga.  674 120 

v.  Everly,  24  Ohio   St.   97,    114 216 

v.  Galloway,    30    Fed.    400 119,  121 

v.  Hammond,    11    Pet.    65 123 

v.  Hawley,   6  Fla.   164 332 

v.  Hyde,   2  Abb.    N.   O.    197 325 

v.  McPherson,  1  H.  L.  Cas.  191 199 

v.  Patton,  83  Va.  255,  2  S.  E.  143 237 

v.  Poole,  54   Miss.  323,   324,   333 94 

v.  Smith,  16  N.  Y.  418,  419 325 

v.  Watts,  98  Ala.  384,  11   South.  646 70 

v.  Withrow,  110  U.  S.  130,  3  Sup.  Ct.  517 177 

v.  Young,  S8  Ala,  338,  6  South.   747 281 

Allison  v.  Drake,  145  111.  500,  32  N.  E.  541 95 

Allore  v.  Jewell,  94   U.  S.  506 144 

Al worth  v.  Seymour,  42  Minn.  526,  44  N.  W.  1030 273 

American  Fire  Hose  Manuf'g  Co.  v.  Cornelius  Callahan  Co.,  41  Fed.  50. .  307 

Ames  v.  Richardson,  29  Minn.  330,  13  N.  W.  137 27 

Andenreid's  Appeal,  89  Pa.  St  114 153 

Anderson  v.  Bank  of  British  Columbia,  2  Ch.  Div.  644 320 

v.  Brinser,  129  Pa.  St.  376,  11  Atl.  809,  and  18  Atl.  520 277 

v.  Harvey,  10  Grat.  3S6 300 

v.  May,  50  Minn.  280,  52  N.  W.  530 115 

v.  Nagle,  12  W.   Va.  98 100 

v.  Roberts,  18  Johns.    515 105 


CASES   CITED.  339 

Page 

Andreas  v.  Hubbard,  50  Conn.  351 257 

Andrew  v.  Trinity  Hall,  9  Ves.  525 52 

Andrews  v.  Aetna  Life  Ins.  Co.,  85  N.  Y.  334 50 

v.  Andrews,  81  Me.  337,  17  Atl.  160;    110  111.  223,  230 128,  188 

v.  Mathews,  59  Ga.  466 100 

Andrus  v.  Coleman,  82  111.  26 232 

Angell,  In  re,  13  R.   I.  630 184 

v.  Angell,  1  Sim.  &  S.  83 318,  323,  324 

v.  Hadden,   15  Ves.   244 326 

Anketel  v.  Converse,  17  Ohio  St.  11 233 

Annapolis  &  E.  R.  Co.  v.  Gantt,  39  Md.  115 215 

Anonymous,  2  Ves.  Sr.  629;   1  Atk.  521;    12  Ves.  4 269,  325,  333 

Anthony  v.  Boyd,  15  R.  I.  495,  8  Atl.  701,  and  10  Atl.  657 127 

Arbuthnot  v.  Norton,  5  Moore,  P.  C.  219 241 

Armistead  v.  Brooke,  IS  Ark.  521 251 

Arms  v.  Ashley,  4  Pick.  71 173 

Armstrong  v.  Broom,  5  Utah,  176,  13  Pac.  364 94 

v.  Toler,  11  Wheat.   258,  271 41 

Arnold  v.  Dixon,  L.  R.  19  Eq.  113 73 

Arthur  v.   Oakes,  63  Fed.   318 296 

Ashburnham  v.  Ashburnharn,  13  Jur.  1111 57 

Ashby  v.  Palmer,  1  Mer.  296 72,  79 

Ashton  v.  Corrigan,   L.  R.  13  Eq.  76 270 

v.  Thompson,  32  Minn.  25,  18  N.  W.  918 152 

Ashton's  Appeal,  73  Pa.  St.  153 96 

Ashurst  v.  Lehman,  86  Ala.  371,  5  South.  731 331 

Aslatt  v.  Corporation  of  Southampton,  16  Ch.  Div.  148 310 

Aspinwall  v.   Sacchi,  57  N.  Y.  331 253 

Astley  v.  Weldon,  2  Bos.  &  P.  346,  350,  354 107,  109 

Aston  v.  Wood,  L.  R.  6  Eq.  419 189 

Astor  v.  Wells,  4  Wheat.   466 91 

Atkinson  v.  Henshaw,  2  Ves.  &  B.  85 332 

v.  Leonard,  3  Brown,  Ch.  218,  224 12 

v.  Ward,  47  Ark.  533,  2  S.  W.  77 208 

Atmore  v.   Walker,  46  Fed.  429 237 

Attalla  Min.  &  Manuf'g  Co.  v.  Winchester  (Ala.)  14  South.  565 249 

Attorney  General  v.  Acton  Local  Board,  22  Ch.  Div.  221 298 

v.  Cleaver,  18  Ves.  211,  218 9,  302 

v.  Continental  Life  Ins.  Co.,  71  N.  Y.  325 243 

v.  Coopers'  Co.,  19  Ves.  192 211 

v.  Duke  of  Northumberland,  7  Ch.  Div.  745 188 

v.  Forbes,  2  Mylne  &  C.  123,  132 298 

v.  Gaskill,  20   Ch.    Div.   519 320 

v.  Gore,   Ch.   150 185 


340  CASES    CITED. 

Page 

Attorney  General  v.  Guardian  Milt  Life  Ins.  Co.,  77  N.  Y.  272 333 

v.  Ironmongers'  Co.,  2  Beav.  313 189 

v.  Leeds  Corp.,  5  Ch.  App.  583 306 

v.  Pearson,  3  Mer.  399 180 

v.  St.  John's  Hospital,  2  De  Gex,  J.  &  S.  021 170 

v.  Sheffield  Gas  Co.,  3  De  Gex,  M.  &  G.  320 301 

v.  Steward,  21   N.   J.    Eq.  340 302 

v.  Syderfin,   1   Vern.    224 189 

v.  Tudor  Ice  Co.,  104  Mass.  239 8 

v.  Utica  Ice  Co.,  2  Johns.  Ch.  371 8 

v.  Wilkins,  17  Beav.  2S:> 30 

v.  Woods,  108  Mass.  430 302 

Attorneys'  &  Solicitors'  Act  1870,  In  re,  1  Ch.  Div.  573 149 

Attwood  v.  Small,  6  Clark  &  F.  232,  244 134 

Atwater  v.  Russell,  49  Minn.  22,  51  N.  W.  024 190 

Atwood  v.  Bearss,  47  Mich.  72,  10  N.  W.  112 85 

v.  Fisk,  101  Mass.   303 39,  41 

Aubuchon  v    Bender,  44  Mo.  500 95 

Austen  v.  Taylor,  1  Eden,  301 184 

Austin  v.  Sprague  Manuf'g  Co.,  14  It.  I.  404 180 

v.  Wacks,  30  Minn.  335,  15  N.  W.  409 279 

Avery  v.  Clark,  87  Cal.  019.  25  Pac.  919 232 

v.  Empire  Woolen  Co.,  82  N.   Y.  582 10 

v.  Ryan,  74  Wis.  591,  43  N.  W.  317 267 

Ayer  v.  Hawkins,  19  Vt.  20 251 

Ayerst  v.  Jenkins,   L.  R.  10  Eq.   2S5 193 

Ayres  v.  Randall,  108  Ind.  595,  9  N.   E.  404 22<  > 


B 

Babcock  v.  Eckler,  24  N.  Y.  025,  032 157 

v.  New  Jersey  Stock- Yard  Co.,  20  N.  J.  Eq.  290 303 

Backhouse  v.  Bonomi,  9  H.  L.  Cas.  512 304 

Bacon   v.  Bacon,  Toth.   133;    5  Ves.  331 87,205 

Bacot  v.  Heyward,  5  S.  C.  441 201 

BaggOtt  v.   Sawyer,  25   S.  C.  405 272 

Bagley  v.   Peddie,   10  N.    Y.   409 108,110 

Bagwell  v.  Bagwell,  72  Ga.  92 40 

Baile  v.  St.  Joseph  Fire  &  M.  Ins.  Co.,  73  Mo.  371 270 

Bailey  v.  Collins,  59  N.  H.  459 295 

v.  Galpin,  40  Minn.  319,  41  N.  W.  1054 91 

v.  Hemenway,  147  Mass.  320,  17  N.  E.  045 195 

v.  Ryder,  10  N.  Y.  363 30 

v.  Winn,   101  Mo.   049,  12   S.   W.    1045 216 


CASES    CITED.  341 

Tage 

Bainbridgge  v.  Baddeley,  3  Macn.  &  G.  413 331 

v.  Blair,  1  Beav.  495 211 

Baker  v.  Bachus'  Adm'r,  32  111.  79 330 

v.  Bradley.  7  De  Gex,  M.  &  G.  597 152 

v.  Griffin,  50  Miss.  158 91 

v.  Humphrey,  101  U.  S.  494,  499 98,  149 

v.  Kinsley,  41  Ohio  St.  403 245 

v.  Leathers,  3   Ind.   558 197 

v.  Martin,    8   Sim.    25 206 

v.  Mather,  25  Mich.  51,  53 87,  88 

v.  Morris,  10  Leigh  (Va.)  284 44 

v.  Pool,   56  Ala.    14 , 119 

v.  Selden,  101  U.  S.  99 307 

Baldock  v.  Johnson,  14  Or.  542,  13  Pac.  434 152 

Baldwin  v.  Sager,  70  111.  503 96 

Bales  v.   Hunt,   77   Ind.   355 120 

Ball  v.  Mannin,  3  Bligh  (N.  S.)  1 144 

v.  Ray,   8  Ch.   App.  467 304 

Ballard  v.  Carr,  48  Cal.  74 149 

v.  Tomlinson,  29  Ch.  Div.  115 304 

Ballinger  v.  Bourland,  87  111.  513 223 

Ballou  v.  Hopkinton,  4  Gray,  324 17 

Balls  v.   Strutt,   1   Hare,   146 312 

Baltimore  &  L.  T.  Co.  v.  Moale,  71  Md.  355,  18  Atl.  658 232 

Baltimore  &  O.  R.  Co.  v.  Arthur,  90  N.  Y.  234 328 

Bangor  Electric  Light  &  Power  Co.  v.  Robinson,  52  Fed.  520 246 

Bangs  v.  Dunn,  66  Cal.  72,  4  Pac.  963 ." 241 

Banister,  In  re,  12  Ch.  Div.  131,  142 276 

Bank  v.   Bradley,  15  Lea,  279 235 

Bankhead   v.    Owen,    60   Ala.   457 235 

Bank  of  Mobile  v.  Tishomingo  Sav.  Inst,  62  Miss.  250 91 

Bank  of  Montreal  v.  Chicago,  C.  &  W.  R.  Co.,  48  Iowa,  518 334 

Bank  of  Muskingum  v.  Carpenter,  7  Ohio,  21 229 

Bank  of  Rochester  v.  Emerson,  10  Paige,  359 32 

Bank  of  Scotland  v.  Christie,  8  Clark  &  F.  214 251 

Baptist  Ass'n  v.  Hart's  Ex'rs,  4  Wheat.  1 187 

Barber  v.  Rukeyser,  39  Wis.  590 117 

Barbour  v.  Wiehle,  116  Pa.  St.  308,  9  Atl.  526 S9 

Baring  v.  Nash,  1  Ves.  &  B.  551 261 

Barker's  Estate,  In  re,  159  Pa.  St.  518,  28  Atl.  365,  368 180 

Barker's  Trusts,  In  re,  1  Ch.  Div.  43 171,  211 

Barnard  v.   Campbell,  58  N.  Y.  73 95 

v.  Lee,  97  Mass.  92 279 

v.  Stone,  159  Mass.  224,  34  N.  E.  272 147 

v.  Wilson,  74  Cal.  513,  16  Pac.  307 222 


342  CASES    CITED. 

Page 

Barnes  v.  Dow,  59  Vt  530,  10  Atl.  258 15 

v.  Jones,  91  Ind.  1G1 332 

v.  Taylor,   27  N.  J.  Eq.  259 43 

v.  Trenton  Gaslight  Co.,  27  N.  J.  Eq.  35 88 

Barnhart  v.  Greenshields,  9  Moore,  P.  C.  IS 83 

Barnum  v.   Barnum,  26  Md.   119 181 

Ban-  v.  Cubbage,  52   Mo.  404 208 

Barret  v.  Beckford,  1  Ves.  Sr.  519 61 

v.  Blagrave,  5  Ves.  555,  6  Ves.  101 295 

Barrett  v.  Hartley,  L.  R.  2  Eq.  789 200 

v.  Hinckley,   124  111.   32,   14  N.   E.    SG3 214,  215 

v.  Sear,  128  Ind.  261,  27  N.  E.  607 97 

Barrow  v.   Richard,   S  Paige,  351 103 

Barrs  v.  Fewkes,  2  Hen.  &  M.  60 192 

Barry  v.  Croskey,  2  Johns.  &  H.  1 137 

Barth  v.  Deuel,  11  Colo.  494,  19  Pac.  471. 124 

Bartlett  v.  Bartlett,  15  Neb.  593,  19  N.  W.  691 151 

v.  Crittenden,  5  McLean,  32,  Fed.  Cas.  No.  1,076 308 

Bartlette  v.  Crittenden,  4  McLean,  300,  Fed.  Cas.  No.  1,082 308 

Barton  v.  Capewell  Cont  Pat.  Co.  (Q.  B.  Div.  1893)  08  Law  T.  (N.  S.)  857  108 

Baskcomb  v.  Beckwith,  L.  R.  8  Eq.  100 276 

Bass   v    Estill,  50  Miss.   300 257 

Bassett   v.    Hughes,    43   Wis.    319 220 

v.  Leslie.  123  N.  Y.  396,  25  N.  E.  386 327 

v.  Manufacturing  Co.,  43  N.  H.  249 14 

v.  Nosworthy,  Cas.  t.  Finch,  102;    2  White  &  T.  Lead.  Cas.  Eq.  1, 

102 35,  96,  106,  208 

v.  Shoemaker,  46  N.  J.  Eq.  538,  20  Atl.  52 147 

Basye  v.  Ambrose,  2S  Mo.  39 109 

Bateman  v.  Fargasor;,  2  Flip.  660,  4  Fed.  32 41 

v.  Wilioe,  1    Schoales  &   L.   201 293 

Bates-  v.  Ball.  72  111.  108 , 144 

v.  Norcrcss,  14  Pick.  224 91 

Bottell  v.  Matot.  58  Vt.   271,  5  Atl.  479 283 

Baughman  v.  Reed,  75  Cal.  319,  17  Pac.  222 333 

Baum's  Appeal,  113  Pa.  St.  58,  4  Atl.  461 267 

Bausman  v.  Kelley.  38  Minn.  197,  36  N.  W.  333 43 

Baxter  v   Farmer,  7  Ired.  Eq.  239 323 

v.  Moses    77  Me    465,  1  Atl.  350 156 

Bay   v.    Williams.    112  111.   91 220 

Bayard  v.  Hoffman,  4  Johns.  Ch.  (N.  Y.)  450 159 

Bayley  v.  Bishop,  9  Ves.  6 79 

Baylor  v.  Dejarnette,  13  Grat.  152 261 

Beal  v.  Chase,  31  Mich.  490 295 

v.  Harrington,  110  111.  113,  4  N.  E.  664 234 


CASES    CITED.  343 

Page 

Bean  v.  Railroad  Co.,  107  N.  C.  731,  747,  12  S.  E.  600 126 

Bearce  v   Barstow,   9  Mass.   45 220 

Beard  v.  Beard,  25  W.  Va.  486 119 

Beatie  v.  Butler,  21  Mo.  313 86 

Beatty  v.  Clark,  20  Cal.  11,  30 207 

Beaver  v.  Beaver,  117  N.  Y.  421,  22  N.  E.  940 177,  178 

Beavers  v.  McKinley,  50  Kan.  602,  32  Pac.  363,  and  33  Pac.  359 194 

Beck  v.  Allison,  56  N.  Y.  366 268 

v.  Beck,  43  N.  J.  Eq.  39,  10  Atl.  155 197 

Becker  v.  Howard,  75  Wis.  415,  44  N.  W.  755 216 

Beckley  v.  Newland,  2  P.  Wms.  182 242 

Beckwith  v.  Webber,  78  Mich.  390,  44  N.  W.  330 255 

Beere  v.  Beere,  79  Iowa,  555,  44  N.  W.  809 101 

Belchier,  Ex  parte,  Amb.  219 202 

Bell  v.  Hudson,  73  Cal.  285,  14  Pac.  791 43 

v.  Lawrence,    51    Ala.    160 121,  127 

Bellamy  v.  Savine,  1  De  Gex  &  J.  566,  578,  584 93 

Belle  of  the  Sea,  The,  20  Wall.  429 47 

Belmont  v.   Coman,   22  N.  Y.  438 219 

Bemis  v.   Upham,   13  Pick.    169 305 

Benbow  v.  Moore  (N.  C.)  19  S.  E.  156 75 

Benner  v.  Kendall,  21  Fla.  584,  588 317 

Bennet  v.  Bennet,  10  Ch.  Div.  474 197 

Bennett,   Ex  parte,   10  Ves.  381,  400 147 

v.  Bates,  94  N.   Y.  354,   363 246 

v.  Harper,  36  W.  Va.  546,  15  S.  E.  143 54 

v.  Hutson,    33  Ark.    762 192 

Benson  v.  Markoe,  37  Minn.  30,  33  N.  W.  38 120 

v.  Whittam,    5    Sim.    22 174 

Benton  v.  Shafer,  47  Ohio  St.    117,  24  N.  E.  197 94 

Benyon  v.  Fitch,  35  Beav.  570 142 

Berney  v.  Sewell,  1  Jac.  &  W.  648. 333 

Berry  v.  Mutual  Ins.  Co.,  2  Johns.  Ch.  603 36 

Beverley  v.  Brooke,  4  Grat  187,  20S,  211 330 

Bicknell  v.  Bicknell,  31  Vt.  498 229 

Bierce  v.  Bed  Bluff  Hotel  Co.,  31  Cal.  160 S9 

Bigland  v.  Huddleston,  3  Brown,  Ch.  285 57 

Bilbie  v.  Lumley,  2  East,  469 119 

Billings  v.  Aspen  Mining  &  Smelting  Co.,  2  C.  C.  A.  252,  51  Fed.  338.  .97,  137 

Bingel  v.  Volz,  142  111.  214,  31  N.  E.  13 129 

Binks  v  Rokeby,  2  Swanst.   226 284 

Birch  v.  Ellames,  2  Anstr.   427 85 

Birchett  v.  Boiling,  5  Munf.  (Va.)  442 268 

Bird  v.  Davis,  14  N.  J.  Eq.  467 250 

v.  Dennison,    7    Cal.    297 90 


344  CASES    CITED. 

Page 

Birdsall  v.  Cropsey,  20  Neb.  679,  45  N.  W*  021 90 

Birmingham  v.  Kirwan,  2  Schoales  &  L.  452 55 

v.   Lesan,  77  Me.  404,  1  Atl.  151 112 

Birmingham  Warehouse  Elevator  Co.  v.  Elyton  Land  Co.,  93  Ala.  540, 

9    South.    235 134 

Birne  v.  Main,  29  Ark.  591 91 

Bischoffsheim   v.    Baltzer,   20    Fed.   890 148 

v.  Earl  of  Banbury,  1  Ch.  Cas.  287 87 

Bishop  v.  Red  mond,  83  Ind.  157 150 

Bissell   v.    Kellogg,   (50  Barb.    (517 37 

Black  v.   Washington,  65  Miss.  00,  3  South.  140 201 

Blackburn  v.  Clarke.  85  Tenn.  500,  3  S.  W.  505 38 

v.  Gregson,    1    Brown,    Ch.    420 231 

Blaekett  v.   Bates,  1  Ch.  App.  117 200 

Blackshire  v.  Pettit,  35  W.  Va.  547,  14  S.  E.  133 105 

Blackstone   Bank   v.   Davis,    21    Pick.    43 180 

v.  Hill,  10  Pick.    129 250 

Blackwell  v.  Ryan,  21  S.  C.  112 275 

Blair  v.  Wait,  09  N.  Y.  113 48 

Blaisdell  v.  Ahern,  144  Mass.  393,  11  N.  E.  GS1 149 

Blake  v.  Bunbury,  1  Ves.  Jr.  523 53 

Blakeman  v.  Blakeman,  39  Conn.  320 121 

Blakemore  v.  Glamorganshire  Canal  Navigation,  1  Mylne  &  K.  154 289 

Blanc  v.  Murray,  30  La.  Ann.  102 10 

Blanchard  v.  Ware,  43  Iowa,  530,  531 93 

Blandf ord  v.  Marlborough,  2  Atk.  545 44 

Blandy  v.  Widmore,  1  P.  Wms.  324,  2  White  &  T.  Lead.  Cas.  Eq.  417 60 

Blaney  v.   Bearce,  2  Greenl.   132 215 

Blasdel   v.  Fowle,   120   Mass.   447 41 

Bleakley's  Appeal,  00  Pa.  St.  1S7 40 

Bledsoe  v.  Nixon,  08  N.  C.  521 110 

Bliss  v.  Lawrence,  58  N.  Y.  442 241 

v.  Pritchard,    07    Mo.    187 43 

Blodgett  v.  Perry,  97  Mo.  203,  273,  10  S.  W.  891 47 

Blondheim  v.  Moore,  11  Md.  305 331 

Blood   v.    Blood,    23   Pick.    SO 90 

Bloodgood    v.    Clark,   4   Paige,    574 335 

Bloom  v.  Noggle,  4  Ohio  St.  45,  40 229 

Blount  v.  Walker,  31  S.  C.  13,  9  S.  E.  S01 193 

Blow  v.  Maynard,  2   Leigh  (Va.)  30 254 

Blue  v.  Marshall,  3  P.  Wms.  381 201 

v.  Watson,    59    Miss.    019 328 

Boardman  v.  Larrabee,  51  Conn.  39 220 

Board  of  Chosen  Freeholders  v.  Newark  City  Nat.  Bank,  4S  N.  J.  Eq.  51, 

21    Atl.    185 11 


CASES    CITED.  345 

Page 

Board  of  Public  Works  v.  Columbia  College,  17  Wall.  530 150 

Bogan  v.  Daughdrill,  51  Ala.  312 200 

Bohart  v.  Chamberlain,  99  Mo.  022,  13  S.  W.  S5 110 

Bond  v.  Kent,  2  Vern.  2S1 235 

Bonesteel  v.   Bonesteel,  28  Wis.   215 325 

Bongard   v.    Block,   81  111.   180 150 

Bonner   v.    Bonner,    13    Ves.   379 257 

Booker  v.  Booker,  20  Ga,  781 323 

Boon  v.  Barnes,  23  Miss.  130 95 

Boone  v.   Chiles,  10  Pet.  210 35 

Booth  v.   Booth,   1  Beav.    125 205 

v.Clark,    17    How.    322 330 

Boren    v.    Smith,   47   111.   4S2 21 

Boston  Diatite  Co.  v.  Florence  Manuf'g  Co.,  114  Mass.  09 311 

Boston  Ice  Co.  v.  Potter,  123  Mass.  28 123 

Boston  &  M.  R.  Co.  v.  Bartlett,  3  Cush.  (Mass.)  224;    10  Gray  (Mass.) 

3S4  273,   275 

Bostwick  v.  Beach,  105  N.  Y.  001,  GG3,  12  N.  E.  32;  103  N.  Y.  414,  422, 

9  N.  E.  41 2S4,  280 

v.  Stiles,    35    Conn.    195 117 

Boswell  v.  Coaks,  27  Ch.  Div.  424,  457 43 

Boulton  v.  Jones,  2  Hurl.  &  N.  504 123 

Bourget  v.  Monroe,  58  Mich.  503,  25  N.  W.  514 273 

Bourne  v.  Bourne,  2  Hare,  35 08 

Boursot  v.  Savage,  L.  R.  2  Eq.  134 SS 

Bouverie  v.  Prentice,  1  Brown,  Ch.  200 204 

Bowditch  v.  Banuelos,  1  Gray,  220 171 

Bowker  v.  Pierce,  130  Mass.  202 202 

Bowles'   Case,   11  Coke,  81b 300 

Bowman  v.  Anderson,  82  Iowa,  210,  47  N.  W.  10S7 80 

v.  Patrick,    30    Fed.    138 151 

Boyce's  Ex'rs  v.  Grundy,  3  Pet.  210,  215 12 

Boyd,  Ex  parte,  105  U.  S.  057 320 

v.  Beaudin,  54  Wis.  193,  198,  11  N.  W.  521 220 

v.  De  I,a  Montagnie,   73  N.   Y.   498,   502 152,  153 

v.  McLean,   1  Johns.  Ch.   (N.   Y.)  5S2 190 

v.  U.  S.,  110  U.  S.  010,  0  Sup.  Ct.  524 321 

Boyes  v.  Liddell,  0  Jur.  725 279 

Boyse  v.  Rossborough,  0  H.  L    Cas.  2 144 

Bozarth  v.  Largent,  128  111.  95,  21  N.  E.  21S 224 

Brabrook  v.  Bank,  104  Mass.  228 178 

Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491 30 

Brackett  v.  Griswold,  103  N.  Y.  425,  428,  9  N.  E.  438 240 

Bradford  v.   Marvin,  2  Fla.  403 232 


346  CASES    CITED. 

Page 
Bradford,  E.  &  C.  R.  Co.  v.  New  York,  L.  E.  &  W.  R.  Co.,  123  N.  Y.  327, 

25   X.    E.   499 270 

Bradlaugh  v.  Newdegate,  11  Q.  B.  Div.  1 241 

Bradley  v.  Bryan,  43  N.  J.  Eq.  396,  13  Atl.  806 101 

Brady  v.  Dilley,  27  Md.  570 207 

v.  Hill,    1    Mo.   315 250 

Bramhall  v.  Ferris,  14  N.  Y.  41 180 

Braudretb  v.  Lance,  8  Paige  (N.  Y.)  24 311 

Branham  v.  Record,  42  Ind.   181 137 

Biasbear    v.    West,    7    Pet.    608 201 

Brazel  v.  Fair,  26  S.  C.  370,  2  S.  E.  293 209 

Breckinridge  v.  Taylor,  5  Dana,  110 252 

Brendel  v.  Klopp,  69  Md.  1,  13  Atl.  589 261,  262 

Brennan  v.  Clark,  29  Neb.  385,  45  N.  W.  472 108 

Brevoort  v.   Brevoort,  70  N.  Y.  136 261 

Brewer  v.  Herbert,  30  Md.  301 26 

Brice  v.  Bannister,  3  Q.  B.  Div.  569 245 

v.  Stokes,  2  White  &  T.  Lead.  Cas.  Eq.  1742;  11  Ves.  319 206,  210 

v.  Watkins,   30   La.   Ann.    21 256 

Brickner  Woolen  Mills  Co.  v.  Henry,  73  Wis.  229,  40  N.  W.  809 14 

Bridesburg  Manuf'g  Co.,  Appeal  of,  106  Pa.  St  275.- 328 

Briggs  v.  Carroll,  117  N.  Y.  288,  22  N.  E.  1054 237 

Bright  v.  Boyd,  1  Story,  478,  Fed.  Cas.  No.  1,875 230 

Brigbt's   Appeal,   100   Pa.    St.    602 70 

Brill  v.  Tuttle,  81  N.  Y.  454,  457 „ 243 

v.  Wrigbt,  112  N.  Y.  129,  19  N.  E.  628 237 

Brinkman  v.  Jones,  44  Wis.  498 82 

Briscoe  v.   Briscoe,   7  Ir.  Eq.  123 56 

v.  Bronaugb,   1   Tex.  326 233 

Brison  v.  Brison,  75  Cal.  525,  17  Pac.  689 151 

Bristow  v.  Warde,  2  Ves.  Jr.  336 55 

Britain  v.  Rossiter,  11  Q.  B.  Div.  123,  129 280,  2S3 

Britton  v.  Royal  Arcanum,  46  N.  J.  Eq.  102,  18  Atl.  675 22 

Britton's   Appeal,   45   Pa.    St    172 92 

Broadbead   v.   McKay,   46  Ind.   595 227 

Broadnax  v.  Baker,  94  N.   C.  675 Ill 

Brock  v.  Dole,  66  Wis.  142,  28  N.  W.  334 299 

Brocksopp  v.  Barnes,  5  Madd.  90 206 

Broderick's  Will,  In  re,  21  Wall.  503 199 

Brodie  v.  Barry,  2  Ves.  &  B.  127 54 

Bromley  v.  Holland,  7  Ves.  3 12 

v.  Smitn,   26    Beav.    644 142 

Brooking  v.  Maudslay,  38  Ch.  Div.  636 323 

Brooks  v.  Davey,  109  N.  Y.  495,  17  N.  E.  412 262 


CASES   CITED.  347 

Page 

Brooks  v.  Martin,  2  Wall.  70 42 

Broughton  v.  Hutt,  3  De  Gex  &  J.  501,  504 121 

Brower  v.  Witmeyer,  121  Ind.  83,  22  N.  E.  975 232 

Brown  v.  Bronson,  35  Mich.  415 160 

v.  Brown,  42  Minn.  270,  44  N.  W.  250;    (111.  Sup.)  32  N.  E.  500;    61 

Tex.  45;    1  Dickens,  62 51,  140,  267 

v.  Cram,   1   N.    H.    169 216 

v.  Crookston  Agricultural  Ass'n,  34  Minn.  545,  26  N.  W.  907 223 

v.  Ferrell,   83    Ky.    417 232 

v.  Finney,  53  Pa.    St.  373 271 

v.  Gray,  6  Jones  (N.  C.)   103 138 

v.    How,    Barnard.    Ch.    354 185 

v.  Jones,    1    Atk.    188 192 

v.  Knapps,  79  N.  Y.   136 238 

v.  Montgomery,   20  N.    Y.   287 138 

v.  Munger,  42  Minn.  482,  44  N.  W.  519 273 

v.  Pancoast,  34  N.  J.  Eq.  324 188 

v.  Stewart,  1  Md.  Ch.  87 215 

v.  Volkening,  64  N.  Y.  76,  82,  83 82.  85,  92 

v.  Ward,  103  N.  C.  173,  9  S.  E.  300 51 

Browning  v.  Lavender,  104  N.  C.  69,  10  S.  E.  77 317 

v.  Wright,  2  Bos.  &  P.  15,  26 128 

Brownson  v.  Reynolds,  77  Tex.  254,  13  S.  W.  986 293 

Bruen  v.  Gillet,  115  N.  Y.  10,  21  N.  E.  676 205 

Brundage  v.  Biggs,  25  Ohio  St.  652,  656 95 

Brunswick-Balke-Collender  Co.  v.  Herrick,  63  Vt  286,  21  Atl.  918 216 

Bryce  v.  Lorillard  Fire  Ins.  Co.,  55  N.  Y.  240,  243 315 

Buchanan  v.  Griggs,  18  Neb.  121,  24  N.  W.  452 116 

v.  Howland,  2  Fish.  Pat.  Cas.  341,  Fed.  Cas.  No.  2,074 307 

Buchannon  v.  Little  (Ky.  App.)  22  S.  W.  559 281 

Buck  v.   Smith,  29  Mich.  166 269 

Buckley  v.  Daley,  45  Miss.  338,  565 215 

v.  Patterson,  39  Minn.  250.  39  N.  W.  490 276 

Budd  v.  Olver,  147  Pa.  St.  194,  23  Atl.  1105 255 

Budington  v.  Munson,  33  Conn.  481 162 

Bufkin  v.  Boyce,  104  Ind.  53,  3  N.  E.  615 332 

Bugbee's  Appeal,  110  Pa.  St.  331,  1  Atl.  273 83 

Bullitt  v.  Farrar,  42  Minn.  8,  43  N.  W.  566 135 

Bullock  v.  Dommitt,  6  Term  R.  650 115 

Bundy  v.  Town  of  Monticello,  84  Ind.  119 209 

Burch  v.  Carter,  44  Ala.  115,  117 87,  88 

Burden  v.  Stein,  27  Ala.  104 305 

Burdon  Cent.  Sugar  Ref.  Co.  v.  Leverich,  37  Fed.  67 295 

Burgess  v.  Wheate,  1  W.  Bl.  123,  129;   1  Eden,  177,  195 26,  102 


348  CASES    CITED. 

Page 

Burke   v.    Roper,    79    Ala.    138 190 

v.  Taylor,  94  Ala.  530,  10  South.  129 141 

Burkhalter  v.  Jones,  32  Kan.  5,  3  Pac.  559 276 

Burkhardt  v.  Howard,  14  Or.  39,  12  Pac.  79 234 

Bark's  Appeal,  75  Pa.  St.  141 286 

Burleson  v.  McDermott,  57  Ark.  229,  21  S.  W.  222 94 

Burlingame  v.  Rowland,  77  Cal.  315,  19  Pac.  526 282 

Burnand  v.  Rodocanachi,  7  App.  Cas.  339 255 

Burnell  v.  Martin,  2  Doug.  417 223 

Burnett   v.   Anderson,    1   Mer.   405 329 

Burney  v.  Ryle,  91  Ga.  701,  17  S.  E.  986 296 

Burnham  v.  Comfort,  108  N.  Y.  535,  15  N.  E.  710 03 

v.  Kidwell,    113   111.   425 143 

Burnside  v.    Wayinan,   49   Mo.   356 176 

Burrow  v.  Scammell,  19  Ch.   Div.   175 286 

Burt  v.  Quisenberry,  132  111.  3S5,  24  N.  E.  622 144,  145 

Burtis  v.  Bradford,  122  Mass.   129 226 

Burton  v.  Perry,  146  111.  71,  34  N.  E.  73 S9 

Buse  v.  Page,  32  Minn.  Ill,  19  N.  W.  736,  and  20  N.  W.  95 217 

Bush  v.  Lathrop,  22  N.  Y.  535 246 

Bushnell  v.  Robeson,  62  Iowa,  540,  17  N.  W.  8S8 303 

Bute  v.  Glamorganshire  Canal  Co.,  1  Phil.  Ch.  681 264 

Butler  v.  Burleson,  16  Vt.  176 295 

v.  Butler,  21  Kan.  521;   5  Ch.  Div.  554 101,  205 

v.  Freeman,    1    Amb.    303 332 

v.  Haskell,   4   Dessaus.   Eq.   651 141 

Butman   v.   Porter,   100   Mass.  337 273 

Butterfield  v.  Cowing,  112  N.  Y.  486,  20  N.  E.  369 210 

Buttrick  v.  Wentworth,  6  Allen,  79 223 

Buttricke  v.  Brodhurst,  3  Brown,  Ch.  S8 56 

Byam  v.  Bullard,  1  Curt.  (U.  S.)  100,  Fed.  Cas.  No.  2,2G2 306 

Byars  v.  Stubbs,  85  Ala.  256,  4  South.  755 276 

Byrne  v.  Byrne,  3  Serg.  &  R.  54 61 

v.  Stewart,  124  Pa.  St.  450,  17  Atl.  19 135 

Byxbie  v.  Wood,  24  N.  Y.  607 240 


O 

Cable  v.  Alvord,  27  Ohio  St.  666 325 

Cadigan  v.  Brown,  120  Mass.  493 10 

Cadogan  v.  Kennett,  2  Cowp.  432 155 

Cadwell  v.  Brown,  36  111.  103 , 200 

Caffrey  v.  Darby,  6  Ves.  488 201 

Caird  v.  Sime,  12  App.  Cas.  326 308 


CASES    CITED.  349- 

Page 

Cake  v.  Simll,  45  N.  J.  Eq.  208,  16  Atl.  434 216 

Calcraft  v.  Roebuck,   1   Ves.  Jr.  221 284 

Caldwell  v.   Carrington,  9  Pet.   86 208 

v.  Depew,  40  Minn.  528,  42  N.  W.  479 120,  276 

v.  Dickinson,  13  Gray,  305 269 

v.  Vanvlissengen,  9  Hare,  424 307 

Calhoun  v.  Burnett,  40  Miss.  599 210 

v.  King,  5  Ala.  525 333 

v.  Millard,  121  N.  Y.  69,  24  N.  E.  27 44 

Callahan  v.  Boazman,  21  Ala.  246 251 

v.  Edwards,  32  N.  Y.  483,  486 245 

Callanan  v.  Gilman,  107  N.  Y.  360,  14  N.  E.  264 302 

Calvo  v.  Davies,  73  N.  Y.  211,  215 220 

Cambrelleng  v.  Purton,  125  N.  Y.  610,  26  N.  E.  907 278 

Camp  v.  Bostwick,  20  Ohio  St.  337 252 

Campau  v.  Van  Dyke,  15  Mich.  371 140 

Campbell  v.  Dearborn,  109  Mass.  130 217 

v.  Durham,  86  Ala.  299,   5  South.   507 276 

v.  Indianapolis  &  V.  R.  Co.,  110  Ind.  490,  11  N.  E.  4S2 S4 

v.  Nichols,  33  N.  J.  Law,  81 50 

v.  Rust,  85  Va.  653,  8  S.  E.  664 268 

v.  Seaman,  63  N.  Y.  568 303 

v.  Walker,  5  Ves.  678 147 

v.  Woodstock  Iron  Co.,  83  Ala.  351,  3  South.  3l» 226 

Campbell's  Appeal,  80  Pa.  St.  298 153 

Campbell's  Trusts,  In  re,  31  Beav.  176 171 

Canedy  v.  Marcy,  13  Gray  (Mass.)  373,  375,  377 120.  314 

Cannon  v.  Lindsey,  85  Ala,  198,  3  South.  676 123 

v.  McNab,  48  Ala.  99 13 

Carhart  v.  Harshaw,  45  Wis.  340 159 

Carler  v.  Corley,  23  Ala.  612 109 

Carleton  v.  Rugg,  149  Mass.  550,  22  N.  E.  55 9 

Carlisle  v.  Cooper,  21  N.  J.  Eq.  576 302 

v.  Jumper,  81  Ky.  282 35 

Carlton  v.  Buckner,  28  Ark.  66 234 

Carney  v.  Hadley,  32  Fla.  344,  14  South.  4,  7 18,  301 

Carpenter  v.  Bowen,  42  Miss.  28 215 

v.  Carpenter,  12  R.  I.  544;  6  R.  I.  542 202,  216 

v.  Longan,  16  Wall.  271,  275 218 

v.  Strange,  141  U.  S.  S7,  106,  11  Sup.  Ct.  960 31 

Carr  v.  Branch,  85  Va.  597,  604,  8  S.  E.  476 79 

v.  Callaghan,  3  Litt.  365 0r> 

v.  Carr,  52  N.  Y.  251,  260 217 

Carraway  v.  Carraway,  27  S.  C.  576,  5  S.  E.  157 10O 


CASES    CITED. 

Pago 

<  larrier  v.  Heather,  02  Mich.  441,  29  N.  W.  38 147 

( Jarrigan  v.  Evans,  31  S.  C.  262,  9  S.  E.  852 201 

Carriugton  v.  Brents,  1  McLean  (U.  S.)  167,  Fed.  Cas.  No.  2,446 94 

<  :i  it.  kIus  v.  Sharp,  20  Beav.  56 285 

Carroll  v.  Ballance,  20  111.  9 215 

v.  Renlch,  7  Smedes  &  M.  79S 184 

Carron  Iron  Co.  v.  Maclaren,  5  H.  L.  Cas.  416,  445 30 

Carruthers,  Ex  parte,  3  De  Gex  &  S.  570 243 

Carson  v.  Ury  (U.  S.  Cir.  Ct.  Mo.)  39  Fed.  777 309 

Carte  v.  Duff,  25  Fed.  183 308 

Carter  v.  Burr,  46  N.  J.  Eq.  134,  18  Atl.  463 147 

v.  Champion,  8  Conn.  549 90 

v.  Gunn,  64  Ga.  651 214 

v.  Phillips,  144  Mass.  100,  10  N.  E.  500 279 

Cartwright  v.  Gardner,  5  Cush.  273,  280,  281 279 

v.  Pettus,  2  Ch.  Cas.  214 30 

v.  Pultney,  2  Atk.  380 261 

Caruthers  v.  Humphrey,  12  Mich.  270 215 

Carver  v.  Coffman,  109  Ind.  547,  10  N.  E.  567 231 

Cary  v.  Cary,  2  Schoales  &  L.  175 147 

Casborne  v.  Scarf e,  1  Atk.  603,  2  White  &  T.  Lead.  Cas.  Eq.  1945 213 

Case  v.  Fishback,  10  B.  Mon.  40,  41 12 

v.  Minot,  158  Mass    577,  33  N.  E    700 14 

v.  Phelps,  39  N.  Y.  164 157 

Casey  v.  Cavaroc,  96  U.  S.  467 27 

v.  Cincinnati  Typographical  Union,  45  Fed.  135 311 

Cashman  v.  Harrison,  90  Cal.  297,  27  Pac.  283 243 

Cassady  v.  Cavenor,  37  Iowa,  300 40 

Cassel  v.  Scott,  17  Ind.  514 294 

Castner  v.  Walrod,  83  111.  171 , . . .     43 

Cate  v.  Cate,  87  Tenn.  41,  9  S.  W.  231 233 

Cathcart  v.  Robinson,  5  Pet.  264,  269 273,  276 

Catlin  v.  Green,  120  N.  Y.  441,  24  N.  E.  941 43 

Cator  v.  Earl  of  Pembroke,  1  Brown,  Ch.  302 234 

Cauffman  v.  Cauffman,  17  Serg.  &  R.  16,  24,  25 51 

Cavanaugh  v.  Peterson,  47  Tex.  198 100 

Cavendish  v.  Dacre,  31  Ch.  Div.  470 57 

v.  Geaves,  24  Beav.  163,  173 245 

Cavin  v.  Gleason,  105  N.  Y.  256,  11  N.  E.  504 209 

Center  v.  Bank,  22  Ala.  743 93 

Central  Nat.  Bank  v.  Connecticut  Mut  Life  Ins.  Co.,  104  U.  S.  54 28,  209 

Central  Trust  Co.  v.  Wabash,  St  L.  &  P.  R,  Co.,  29  Fed.  546;   46  Fed.  26 

88,  334 
Chace  v.  Chapin,  130  Mass.  128 173 


CASES    CITED.  851 

Page 

Chafee  v.  Quidnick  Co.,  13  R.  I.  442 330 

Chalmer  v.  Bradley,  1  Jac.  &  W.  68 211 

Chamberlain  v.  Thompson,  10  Conn.  243,  251 215 

v.  Williamson,  2  Maule  &  S.  408 210 

Champion  v.  Brown,  6  Johns.  Ch.  398,  402 233 

Champlin  v.  Champlin,  16  R.  I.  314,  15  Atl.  85 161 

v.  Laytin,  18  Wend.  407,  422 120 

Chancey's  Case,  1  P.  Wms.  408,,  2  White  &  T.  Lead.  Cas.  Eq.  3S0 61 

Chapin  v.  Waters,  116  Mass.  140,  146 237 

Chapman  v.  Cole,  12  Gray,  141 125 

v.  Gibson,  3  Brown,  Ch.  229 130 

v.  Lee,  45  Ohio  St.  356,  13  N.  E.  736 320 

v.  Sims,  53  Miss.  154 98 

v.  Tanner  (1684)  1  Vern.  267 232 

v.  West,  17  N.  Y.  125 93 

Charles  v.  Rankin,  22  Mo.  566 304 

Charlton  v.  West,  30  Beav.  124 61 

Chase  v.  Box,  Preem.  Ch.  261 252 

v.  Peck,  21  N.  Y.  581 233 

v.  Woodbury,  6  Cush.  143 225 

Chase's  Case,  1  Bland,  206-213 330 

Chatfield  v.  Simonson,  92  N.  Y.  209,  218 47 

Chatham  Furnace  Co.  v.  Moffatt,  147  Mass.  403,  18  N.  E.  168 135 

Chautauque  Co.  Bank  v.  White,  6  Barb.  589 330 

Cheatham  v.  Crews,  88  N.  C.  38 263 

Cheesman  v.  Shreve,  37  Fed.  36 300 

Cheever  v.  Fair,  5  Cal.  337 225 

Cheney  v.  Libby,  134  U.  S.  68,  10  Sup.  Ct.  498 279 

v.  Patton,  134  111.  422,  25  N.  E.  792 222 

Chesman  v.  Cummings,  142  Mass.  65,  67,  7  N.  E.  130 278 

Chester  v.  Jumel,  125  N.  Y.  237,  251,  26  N.  E.  297 229 

Chesterfield  v.  Janssen,  2  Ves.  Sr.  156,  157 154 

Cheswell  v.  Chapman,  38  N.  H.  17 263 

Chetwynd  v.  Morgan,  31  Ch.  Div.  596 27 

Chew  v.  Hyman,  10  Biss.  240,  7  Fed.  7 224 

Chicago  v.  Witt,  75  111.  211 83 

Chicago,  B.  &  Q.  R.  Co.  v.  Reno,  113  111.  39 274 

Chicago  Municipal  G.  L.  &  F.  Co.  v.  Town  of  Lake,  130  111.  42,  22  N.  E.  616  278 

Chicago,  M.  &  St  P.  R.  Co.  v.  Stewart,  19  Fed.  5 276 

Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Pullman  Southern  Car  Co.,  139  U.  S.  79, 

11  Sup.  Ct.  490 255 

Chicago  &  A.  O.  &  M.  Co.  v.  United  States  Petroleum  Co.,  57  Pa.  St.  83. . .  331 

Chick  v.  Willetts,  2  Kan.  384 214 


352  CASES    CITED. 

Page 

Chlnnock  v.  Sainsbury,  30  Law  J.  Ch.  409 268 

Chipman  v.  Morrill,  20  Cal.  131,  135 252 

Chisholin  v.  Adams,  71  Tex.  678,  10  S.  W.  330 9 

Cholinondeley  v.  Clinton,  2  Mer.  359 214 

Chouteau  v.  Boughton,  100  Mo.  400,  13  S.  W.  S77 240 

Christopher  v.  Christopher,  C.4  Md.  5S3,  3  Atl.  290 234 

Christy  v.  McKee,  94  Mo.  241,  6  S.  W.  050 233,  235 

Church  v.  Bull,  2  Denio,  430 55 

v.  Joint  School  Dist  No.  12,  55  Wis.  399,  13  N.  W.  272 301 

v.  Rutland,  64  Pa.  St.  432 OS 

v.  Smith,    39    Wis.   492 236 

Churchill  v.  Holt,  131  Mass.  07 253 

v.  Morse,  23  Iowa,  229 100 

Churton  v.  Douglas,  Johns.  Eng.  Ch.  174 296 

Cigar  Makers'  Protective  Union  v.  Conhaim,  40  Minn.  243,  41  N.  W.  943.  .  309 

City  Bank,  Ex  parte,  3  Ch.  App.  758 240 

v.  Bangs,  2  Paige,  570 328 

City  Fire  Ins.  Co.  v.  Olmsted,  33  Conn.  476 270 

City  of  Bloomington  v.  Smith,  123  Ind.  41,  23  N.  E.  972 116 

City  of  Grand  Rapids  v.  Weiden,  97  Mich.  82,  56  N.  W.  233 303 

City  of  London   v.    Levy,   8   Ves.    404 318 

City  of  Quincy  v.  Jones,  76  111.  231 304 

City  of  Richmond  v.  Davis,  103  Ind.  449,  3  N.  E.  130 1S8 

City  of  Rochester,  In  re,  110  N.  Y.  105,  17  N.  E.  740 237 

City  of  St.  Louis  v.  O'Neal  Lumber  Co.,  114  Mo.  74,  21  S.  W.  484 32 

v.  Priest,  88  Mo.  612 202,  203 

Clabaugh  v.  Byerly,  7  Gill.  354 27,  102 

<  'lack  v.  Holland,  19  Beav.  271 201 

Claflin  v.  Lenheim,  66  N.  Y.  301,  306 84 

Clarendon  v.  Hornby,  1  P.  Wms.  44G 203 

Claridge  v.  Hoare,  14  Ves.  59,  (15 321 

Clark  v.  Barnard,  108  U.  S.  430,  457,  2  Sup.  Ct.  87S Ill 

v.  Clark,  108  Mass.  522;    (N.  J.  Ch.)  20  Atl.  1012 17S,  325 

v.  Flint,  22  Pick.  243 90 

v.  Garfield,  8  Allen.  427 204 

v.  Jetton,  5  Sneed  (Tenn.)  229 65 

v.  McNeal,  114  N.  Y.  295,  21  N.  E.  405 98 

v.  Sewell,  3  Atk.  96 01 

Clarke  v.  Franklin,  4  Kay  &  J.  257 77,  78 

Clarkson  v.  Skidmore,  46  X.  Y.  301 222 

Clason  v.  Bailey,  14  Johns.  489 273 

Clayton's  Case,  1  Mer.  571.',  57."..  585 250,  251 

Cleaveland  v.  Richardson,  132  U.  S.  318,  329,  10  Sup.  Ct.  100 138 


CASES   CITED.  353 

Pags 

Oleghorn  v.  Zumwalt,  83  Cal.  155,  23  Pac.  294 124 

Clemens  v.  Belford,  14   Fed.  728 307,  308 

v.  Caldwell,  7  B.  Mon.  171 211 

Clement  v.  Cash,  21  N.  Y.  253,  259,  260 10S,  110 

Clements  v.  Moore,  6  Wall.  312 155 

v.  Tillman,  79  Ga.  451,  453,  5  S.  B.  194 29,  31 

Clementson  v.  Gandy,  1  Keen,  309 T>3 

Cleveland  v.  Southard,  25  Wis.  479 219 

Cleveland  Woolen  Mills  v.  Sibert,  81  Ala.  140,  141,  1  South.  773 81 

Clift  v.  Moses,  116  N.  Y.  144,  157,  22  N.  E.  393 68 

Clinad  v.  Cooke,  1  Schoales  &  L.  22,  32,  39,  40 2S1,  282,  287 

Clinch  v.  Financial  Corp.,  L.  R.  2  Eq.  271 322 

Close  v.  Flesher  (Com.  PI.  N.  Y.)  2S  N.  Y.  Supp.  737 296 

Cloud  v.  Clinkinbeard,  8  B.  Mon.  397 59,  61 

v.  Greasley,  125  111.  313,  17  N.  E.  826 30,  283 

Clough  v.  Bond,  3  Mylne  &  C.  490,  496 116 

Clowes  v.  Dickinson,  5  Johns.  Ch.  235,  240 225 

Cobbett  v.  Brock,  20  Beav.  524 153 

Cocanaugher  v.  Green  (Ky.)  20  S.  W.  542 275 

Cochrane  v.  Willis,  1  Ch.  App.  58 120,  124 

Cock  v.  Ravie,  6  Ves.  283 325 

Cocking  v.  Pratt,  1  Ves.  Sr.  400 127 

Cockrell  v.  Armstrong,  31  Ark.  580 174 

Codman  v.  Tinkham,  15  Pick.  364 262 

Codwise  v.  Gelston,  10  Johns.  507 33 

Coffin  v.  Parker,  127  N.  Y.  117,  27  N.  E.  814 224 

Cogan  v.  Stephens,  5  Law  J.  Ch.  17 77 

Cogswell  v.  New  York,  N.  H.  &  H.  R.  Co.,  103  N.  Y.  10,  8  N.  E.  537 303 

v.  Railroad  Co.,  105  N.  Y.  319,  11  N.  E.  518 14 

Cohen  v.  Barton,  (Md.)  21  Atl.  63 91 

v.  Goldsboro  Com'rs,  77  N.  C.  2 9 

v.  Morris,  70  G a.  313 312 

Cohn  v.  People,  149  111.  4S6,  37  N.  E.  60 40 

Coit  v.  Comstock,  51  Conn.  352 190 

Colbert  v.  Shepherd  (Va.)  16  S.  E.  246 148 

Cole  v.  Cunningham,  133  U.  S.  107,  10  Sup.  Ct.  269 30 

v.  Potts,  10  N.  J.  Eq.  67 2S1 

Coleman  v.  Slade,  75  Ga.  61 250 

Coles  v.  Trecothick,  9  Ves.  234,  246 147,  118 

Colgrove  v.  Solomon,  34  Mich.  494 2S2 

Collier  v.  Brown,  1  Cox,  42S 141 

v.  Munn,  41  N.  Y.  145 207 

Collingwood  v.  Row,  3  Jur.  (N.  S.)  785 71 

EQ.JUR.— 23 


354 


CASES    CITED. 


Page 

Collins  v.  Champ,  15  B.  Mon.  118 73 

v.  Richart,  14  Bush,  021 235 

Colton  v.  Colton,  127  U.  S.  300,  8  Sup.  Ct.  1104 175 

v.  Ross,  2  Paige,  300 199 

v.  Stanford,  82  Cal.  351,  352,  23  Pac.  16 130,  137,  148 

Colver  v.  Wood  (Tenn.)  25  S.  W.  903 51 

Colverson  v.  Bloomfield,  29  Ch.  Div.  341 325 

Colvin,  In  re,  3  Md.  Ch.  288 332 

v.  Hartwell,  5  Clark  &  F.  484 38 

Combes  v.  Chandler,  33  Ohio  St.  178 40 

Combs  v.  Scott,  70  Wis.  662>  45  N.  W.  532 14,  275,  277,  280 

Comegys  v.  ATasse,  1  Pet.  213 240 

Comstock  v.  Johnson,  46  N.  Y.  015 38 

Conant  v.  National  State  Bank,  121  Ind.  323,  22  N.  E.  250 134 

Conaway  v.  Sweeney,  24  W.  Va.  643,  649 260 

Condon  v.  Kemper,  47  Kan.  126,  27  Pac.  829 109 

Conger  v.  New  York,  W.  S.  &  B.  R.  Co.,  120  N.  Y.  29,  23  N.  E.  983 274 

Conkey  v.  Bond,  30  N.  Y.  427 148 

Connecticut  Fire  Ins.  Co.  v.  Erie  It.  Co.,  73  N.  Y.  399 255 

Connecticut  Mut.  Life  Ins.  Co.  v.  Smith,  117  Mo.  261,  22  S.  W.  623 90 

Conner  v.  Welch,  51  Wis.  431,  8  N.  W.  200 ' 120 

Const  v.  Harris,  1  Turn.  &  R.  517 332 

Constant  v.  Matteson,  22  111.  546 200 

Continental  Nat.  Bank  v.  National  Bank  of  the  Commonwealth,  50  N.  Y. 

575,  585 49,  50 

v.  Weems,  69  Tex.  489,  6  S.  W.  802 209' 

Converse  v.  Blumrich,  14  Mich.  109 135,  233 

Cooclfs  Ex'r  v.  Cooch's  Adm'r,  5  Houst.  (Del.)  540,  509 237 

Cook  v.  Barr,  44  N.  Y.  159 173 

v.  Basley,  123  Mass.  396 223 

v.  Berlin  Woolen  Mills  Co.,  43  Wis.  433 148 

v.  Black,  1  Hare,  390 244 

v.  Clayworth,  18  Ves.  12 144 

v.  Hutchinson,  1  Keen,  42,  50 194 

Cooke  v.  Cooke,  43  Md.  522;   L.  R.  4  Eq.  77 150,  209 

v.  Dealey,  22  Beav.  190 73 

Cookes  v.  Hellier,  1  Ves.  Sr.  235 51 

Cooper  v.  Cedar  Rapids  Water-Power  Co.,  42  Iowa,  398 202 

v.  Cooper,  8  Ch.  App.  813,  819 62 

v.  Crabtree,  20  Ch.  Div.  589 303 

v.  Lovering,  100  Mass.  77,  79 135 

v.  Merritt,  30  Ark.  686 280 

v.  Phibbs,  L.  R.  2  H.  L.  149 121 


CASES    CITED.  355 

Page 

Cooper  v.  Schlesinger,  111  U.  S.  148,  4  Sup.  Ct.  360 135 

v.  Smith,  75  Mich.  247,  42  N.  W.  815 246 

v.  Vesey,  20  Ch.  Div.  612 316 

v.  Whittingham,  15  Ch.  Div.  501 298 

Cooth  v.  Jackson,  6  Ves,  39 283 

Cope  v.  Fair  Ass'n,  99  111.  489 8 

Copeland  v.  Mercantile  Ins.  Co.,  6  Pick.  (Mass.)  198 148 

Copenrath  v.  Kienby,  83  Ind.  18 143 

Coquillard's  Adm'r  v.  Bears,  21  Ind.  479 241 

Corbett  v.  Laurens,  5  Rich.  Eq.  (S.  C.)  301,  315 231 

Corliss  v.  E.  W.  Walker  Co.,  57  Fed.  434 311 

Cormicks,  In  re,  2  Ir.  Eq.  264 332 

Cornell,  In  re,  110  N.  Y.  351,  357,  18  N.  E.  142 202 

v.  Andrews,  35  N.  J.  Eq.  7 277 

v.  Hall,  22  Mich.  377,  383 217 

v.  Hichins,    11    Wis.    353 246 

Cornish  v.  Abington,  4  Hurl.  &  N.  549 49 

Cornog  v.  Cornog,  3  Del.  Ch.  407,  416 215 

Cornwall  &  L.  R.  Co.'s  Appeal,  125  Pa.  St.  232,  17  Atl.  427 269 

Corrothers  v.  Jolliffe,  32  W.  Va,  562,  9  S.  E.  889 262 

Corsellis,  In  re,  34  Ch.  Div.  675 207 

Cort  v.  Lassard,  18  Or.  221,  22  Pac.  1054 296 

Cory  v.  Cory,  37  N.  J.  Eq.  198;    1  Ves.  Sr.  19 58,  145 

Cotheal  v.  Talmage,  9  N.  Y.  551 110 

Cottington  v.  Fletcher,  2  Atk.  155 ISO 

Cottrell's  Appeal,  23  Pa,  St.  294 254 

Coutts  v.  Acworth,  L.  R.  9  Eq.  519 53 

Couturier  v.  Hastie,  5  H.  L.  Cas.  675 123 

Covenant  Mut.  Ben.  Ass'n  v.  Sears,  114  111.  108,  29  N.  E.  480 270 

Cowee  v.  Cornell,  75  N.  Y.  91,  99,  100 144 

Cowell  v.  Edwards,  2  Bos.  &  P.  268 252 

Cowles  v.  Pollard,  51  Ala.  445 15 

v.  Whitman,  10  Conn.  121 267 

Cowper  v.  Cowper,  2  P.  Wms.  720,  753 34 

v.  Scott,  3  P.  Wms.  124 51 

Cowtan  v.  Williams,  9  Ves.  107 329 

Cox  v.  McMullin,  14  Grat.  (Va.)  82 iy.3 

Crabb  v.  Young,  92  N.  Y.  56 202 

Craig  v.  Hukill,  37  W.  Va.  520,  16  S.  E.  363 112 

v.  Leiper,  2  Yerg.  (Tenn.)  193 44 

v.  Leslie,  3  Wheat.  563,  567 2<i,  72 

v.  Zimmerman,  87  Mo.  478 98 

Cram  v.  Mitchell,  1  Sandf .  Ch.  251 96 


356  CASES   CITEft 

Pag* 

Cramer  v.  Lepper,  26  Ohio  St.  59 220 

v.  Watson,  73  Ala.  127 224 

Crampton  v.  Varna  K.  Co.,  7  Ch.  App.  562 270 

Crane  v.  Bolles,  49  N.  J.  Eq.  373,  24  AtL  237 69 

v.  Conklin,  1  N.  J.  Eq.  346 144 

v.  Hearn,  26  N.  J.  Eq.  378 205 

v.  McDonald,  118  N.  Y.  648,  23  N.  E.  991 328 

v.  Powell,  139  N.  Y.  379,  34  N.  E.  911 283 

Cranford  v.  Tyrrell,  128  N.  Y.  341,  28  N.  E.  514 302,  304 

Craniner's  Case,  2  Salk.  508 61 

Crass  v.  Memphis  &  C.  K.  Co.,  96  Ala.  447,  11  South.  480 329 

Crassen  v.  Swoveland,  22  Ind.  428 82 

Crawford,  In  re,  113  N.  Y.  560,  21  N.  E.  682 64 

v.  Edwards,  33  Mich.  354 220 

v.  Fisher,  1  Hare,  436,  441 326 

v.  Logan,  97  111.  396 255 

Crawford's  Appeal,  61  Pa.  St.  52 177 

Crawshay  v.  Thornton,  2  Mylne  &  C.  1,  19-24 328,  329 

Craythorne  v.  Swinburne,  14  Ves.  160,  162,  163 253.  254 

Credit  Co.  of  London  v.  Arkansas  Cent  R.  Co.,  15  Fed.  46 334 

Creed  v.  Bank,  1  Ohio  St.  1 195 

Crighton  v.  Dalimer,  70  Miss.  602,  13  South   237 9 

Criscoe  v.  Hambrick,  47  Ark.  235,  1  S.  W.  150 201 

Crisfield  v.  State,  55  Md.  192 25r> 

Crissman  v.  Crissman,  23  Mich.  218 173 

Crompton  v.  Pratt,  105  Mass.  255 251 

Cromwell  v.  Brooklyn  Fire  Ins.  Co.,  44  N.  Y.  42 27 

Crook  v.  Corp.  of  Seaford,  6  Ch.  App.  551 282 

Cropley  v.  Cooper,  16  Wall.  167 70 

Crosby  v.  Merriam,  31  Minn.  342,  17  N.  ,W    950 203 

Cross  v.  De  Valle,  1  Cliff.  (U.  S.)  2S2,  Fed.  Cas.  No.  3.430 34 

v.  Petrie,  10  B.  Mon.  413 201 

Crossland  v.  Powers  (Ark.)  13  S.  W.  722 234 

Crouse  v.  Frothingham,  97  N.  Y.  105 277 

Crowe  v.  Colbeth,  63  Wis.  643,  24  N.  W.  478 234 

Crowell  v.  Hospital  of  St.  Barnabas,  27  N.  J.  Eq.  050 220 

Crowley  v.  Hicks,  72  Wis.  539,  543,  40  N.  W.  151 75 

Crump  v.  Black,  6  Ired.  Eq.  321 35 

y.  Ingersoll,  47  Minn.  179,  182,  49  N.  W.  739 15 

Cruttwell  v.  Lye,  17  Ves.  335 268,  296- 

Cryder's  Appeal,  11  Pa.  St.  72 257 

Cuddee  v.  Rutter,  5  Vin.  Abr.  538,  pi.  21,  1  White  &  T.  Lead.  Cas.  Eq. 
1063    266,  267 


CASES    CITED.  357 

Page 

Cullen  v.  Carey,  146  Mass.  50,  15  N.  E.  131 210 

v.  Dawson,  24  Minn.  66 329 

Cullingworth  v.  Loyd,  2  Beav.  385 154 

Cummings  v.  City  of  St.  Louis,  90  Mo.  259,  2  S.  W.  130 302 

Cunningham  v.  Duncan,  4  Wash.  506,  30  Pac.  647 2S6 

v.  Pattee,  99  Mass.  248 86 

Curdy  v.  Berton,  79  Cal.  420,  21  Pac.  858 199 

Curling  v.  Marquis  Townshend,  19  Ves.  632 335 

v.  May,   3  Atk.    255 68 

v.  Townshend,   19   Ves.   628 142 

Curll  v.  Emery,  14S  Mass.  32,  18  N.  E.  574 40 

Curran  v.  Holyoke  U.  Water-Power  Co.,  116  Mass.  90 274 

Currie  v.  Clark,  101  N.  C.  329,  7  S.  E.  805 15 

Curry  v.  Larer,  7  Pa.  St.  470 109 

Curtis  v.  Curtis,  2  Brown,  Ch.  620,  631,  632 262 

v.  Leavitt,  15  N.  Y.  44 335 

v.  Mundy,  3  Mete.  (Mass.)  405 83 

v.  Root,  20  111.  54 101 

Curwyn  v.  Miller,  3  P.  Wms.  293 142 

Cushing  v.  Blake,  30  N.  J.  Eq.  689 184 

v.  Drew,  97  Mass.  445 110 

Cushman  v.  Bonfleld,  139  111.  219,  28  N.  E.  937 147 


D 

Dabney  v.  Bailey,  42  Ga.  521 57 

Daggett  v.  Rankin,  31  Cal.  321,  326 26 

Dailey  v.  King,  79  Mich.  568,  44  N.  W.  959 121 

Dakin  v.  Williams,   17  Wend.  452 110 

Dale,  Ex  parte,  11  Ch.  Div.  772 209 

v.  Kimpton,  46  Vt.  76 244 

Dalton  v.  Angus,  6  App.  Cas.  809 304 

Daly  v.  Smith,  49  How.  Pr.  150 296 

Dambmann  v.  Schulting,  75  N.  Y.  55 127,  138 

Damm  v.  Damm,  91  Mich.  424,  51  N.  W.  1069 225 

Damon  v.  Bryant,  2  Pick.  411 156 

Dana  v.  Bank  of  U.  S.,  5  Watts  &  S.  226 170 

v.  St.  Paul  Investment  Co.,  42  Minn.  194,  44  N.  W.  55 279 

Danaher  v.  Prentiss,  22  Wis.  311 293 

Dance  v.  Dance,  56  Md.  435 235 

Danforth  v.  Laney,  28  Ala.  274 281 

Danser  v.  Warwick,  33  N.  J.  Eq.  133 173 

Darke  v.  Martyn,  1  Beav.  525 204 

Darling  v.  Mayor,  etc.,  of  Baltimore,  51  Md.  1 117,  293 


358  CASES   CITED. 

Page 

Darlington  v.  Darlington,  160  Pa.  St  65,  28  Atl.  503 70 

Darrah  v.  Boyce,  02  Mich.  4S0,  29  N.  W.  102 11 

Darst  v.  Phillips,  41  Ohio  St.  514 12 

Dascouib  v.  Marston,  SO  Me.  223.  13  Atl.  SSS 188 

Dashiell  v.  Attorney  General,  5  Har.  &  J.  (Aid.)  392 190 

Davenport  v.  Davenport,  7  Hare,  217,  222 299,  300 

v.  Sargent,  63  N.  H.  538,  4  Atl.  569 237 

Davidson  v.  Coon,  125  Ind.  497,  25  N.  E.  601 237 

Davies  v.  Austen,  1  Ves.  Jr.  247 245 

v.  Penton,  6  Barn.  &  C.  216 Ill 

v.  Sear,  L.  R.  7  Eq.  427 85 

Davis  v.  Bechstein,  69  N.  Y.  440,  442 24G 

v.  Boston,  129  Mass.  377 317 

v.  Browne,  2  Del.  Ch.  188 312 

v.  Duke  of  Marlborough,  1  Swanst.  74;  2  Swanst.  125 241,  330 

v.  Dunne,  46  Iowa,  684 150 

v.  Gray,  16  Wall.  218 330 

v.  Hubbard,  3S  Ala.  185,  189 226 

v.  Page,  9  Ves.  350 57 

v.  Parker,  14  Allen,  94,  98,  104 2S6 

v.  Sawyer,   133  Mass.  289 304 

v.  Society,  75  N.  Y.  362 9 

v.  Symonds,  1  Cox,  402,  404 129 

v.  Whittaker,  38  Ark.  435 64 

Davis'  Appeal,  83  Pa.  St.  348 237 

Dawson  v.  Clarke,  18  Yes.  247,  254 192 

v.  Dawson,  7  Ves.  173 325 

Day  v.  Cooley,  118  Mass.  527 157 

v.  Hunt,  112  N.  Y.  191,  195,  19  N.  E.  414 278 

v.  Luhke,  L.  R.  5  Eq.  336 279 

v.  Washburn,  24  How.  352-357 32 

Dayton  v.  Fargo,  45  Mich.  153,  7  N.  W.  158 240 

Dean  v.  Walker,  107  111.  540,  545 220 

Deane  v.  Rastron,  1  Anst.  64 141 

Deans  v.  Robertson,  64  Miss.  195,  1  South.  189 37 

Dearie  v.  Hall,  3  Russ.  1,  30,  48 245 

De  Armond  v.  De  Armond,  10  Ind.  191 160 

Deason  v.  Taylor,  53  Miss.  697 87 

De  Bruhl  v.  Maas,  54  Tex.  464 234 

Decker  v.  Gardner,  124  N.  Y.  334,  26  N.  E.  814 335 

Deen  v.  Milne,  113  N.  Y.  303,  309,  20  N.  E.  S61 275 

Deere  v.  Guest,  1  Mylne  &  C.  510 289 

Deetjen  v.  Richter,  33  Kan.  410,  6  Pac.  595 . 83 

De  Give  v.  Healey,  60  Ga,  391 119 


CASES   CITED.  359 

Page 

De  Graff,  Vrieling  &  Co,  v.  Wickham  (Iowa)  52  N.  W.  503 110 

De  Gray  v.  Mouinouth  Beach  Clubhouse  Co.  (N.  J.  Ch.)  24  Atl.  388 103 

Dehon  v.  Foster,  4  Allen,  545,  550 30 

Deichman  v.  Arndt,  49  N.  J.  Eq.  106,  22  Atl.  799 60,  61 

Delaware  L.  &  W.  R.  Co.  v.  Oxford  Iron  Co.,  38  N.  J.  Eq.  151 254 

Demarest  v.  Hardham,  34  N.  J.  Eq.  469 304 

Deining  v.  Merchants'  Cotton-Press  &  Storage  Co.,  90  Tenn.  300,  17  S. 

AY.    89 255 

Denis  v.  Leclerc,  1  Mart.  (La.)  297. ...". 308 

Denny  v.  Faulkner,  22  Kan.  89,  100 227 

v.  Hancock,  6  Ch.  App.  1 137,  276 

Dent  v.  Bennett,  4  Mylne  &  C.  269 153 

v.  Dent,  30  Beav.  363 231 

v.  Ferguson,  132  U.  S.  50,  10  Sup.  Ct.  13 40 

Denton  v.  Denton,  1  Johns.  Ch.  364 325 

Depeyster  v.  Gould,  3  N.  J.  Eq.  474,  480 196 

De  Pothonies  v.  De  Mattos,  El.,  Bl.  &  El.  467 239 

Dering  v.  Earl  of  Winchelsea,  1  Cox,  318,  1  AYhite  &  T.  Lead.  Cas.  Eq. 

106    41,    252 

Desot  v.  Ross,  95  Mich.  81,  54  N.  W.  694 256 

Dettra  v.  Kestner,  147  Pa.  St.  566,  23  Atl.  S89 105 

De  Vaughn  v.  McLeroy,  82  Ga.  687,  10  S.  E.  211 78,  79 

Devaynes  v.   Robinson,  24  Beav.   86 210 

Devine  v.  Harkness,  117  111.  147,  7  N.  E.  52 256 

De  Visme,  In  re,  2  De  Gex,  J.  &  S.  17 197 

v.  De  Yisnie,  1  Macn.  &  G.  346 284 

Devlin  v.  Mayor,  etc.,  63  N.  Y.  9 240 

Devron  v.  First  Municipality,  4  La.  Ann.  11 9 

Dewar  v.  Maitland,  L.  R.  2  Eq.  834 54,  56,  58 

Dey  v.  Dunham,  2  Johns.  Ch.  182 91 

De  Zouche  v.  Garrison,  140  Pa.  St.  430,  21  Atl.  450 329 

Diamond  v.  Lawrence  Co.,  37  Pa.  St.  353 94 

Diamond  Match  Co.  v.  Roeber,  106  N.  Y.  473,  13  N.  E.  419 296 

Dibrill  v.  Carlisle,  48  Miss.  691 34 

Dickerson  v.  Colgrove,  100  U.  S.  578,  580,  584 46,  47,  98 

v.  Evans,  84  111.  451 105 

v.  Tillinghast,   4  Paige,   215 95 

Dickerson's  Appeal,  115  Pa.  St.  198,  8  Atl.  04 177 

Dickey  v.  Lyon,  19  Iowa,  545 86 

v.  Reed,  78   111.   262 21 

Diedrichs  v.  Northwestern  Union  R.  Co.,  33  Wis.  219 298 

Dilburn  v.  Youngblood,  85  Ala.  449,  5  South.  175 266 

Dillaye  v.  Commercial  Bank,  51  N.  Y.  345 208 

Dillman  v.  Nadlehoffer,  119  111.  567,  7  N.  E.  88 135 


360  CASES    CITED. 

Page 

Dillon  v.  Parker,  1  Swanst.  359 52,  57 

Dilworth  v.  Sinderling,  1  Bin.  (Pa.)  488 38 

Dilworth's  Appeal,  108   Pa.    St.  92 210 

Distilled  Spirits,  The,  11  Wall.  35G 89 

Distrow  v.  Secor,  58  Conn.  35,  18  Atl.  981 148 

Dittman  v.    Repp,    50   Md.   516 303,  304 

Dix  v.   Cobb,   4  Mass.  508 244 

Dixon  v.  Brown,  32  Ch.  Div.  597 119 

v.  Dixon,   1   Md.   Ch.   220 * 234 

Docker  v.  Somes,  2  Mylne  &  K.  664 249 

Docter  v.  Hellberg,  05  Wis.  415,  27  N.  W.  176 273,  277,  286 

Dodd  v.  Bellows,  29  N.  J.  Eq.  127 328 

v.  Home  Ins.  Co.,  22  Or.  3,  28  Pac.  881,  884,  29  Pac.  3 15 

v.  Wilson.  4  Del.  Ch.  114,  409, 25 

Dodge  v.    Briggs,   27  Fed.    160 97 

v.  Davis,  S5  Iowa,  77,  52  N.  W.  2 86 

v.  Essex  Ins.   Co.,   12  Gray,  65 140 

v.  Williams,  4(5  Wis.  70,  1  N.  W.  92,  and  50  N.  W.  1103 GO,  188 

Dodkin  v.  Brunt,  L.  R.  6  Eq.  580 171 

Doe  d.  Leach  v.  Micklem,  6  East,  486 128 

Doggett  v.  Lane,   12  Mo.  215 153 

Doloret  v.  Rothschild,  1  Sim.  &  S.  590 279 

Dolphin  v.  Aylward,  L.  R.  4  H.  L.  486 256 

Domestic  Tel.  Co.  v.  Metropolitan  Tel.  Co.,  39  N.  J.  Eq.  160,  165 271 

Donlin  v.  Bradley,  119  111.  412,  10  N.  E.  11 , 195 

Donovan  v.  Finn,  Hopk.  Ch.  (N.  Y.)  59,  74 23 

Dood  v.  Wakeman,  26  N.  J.  Eq.  484 283 

Doolittle  v.  Lewis,  7  Johns.  Ch.  45 223 

Dorn  v.  Fox,  61  N.  Y.  264 328 

Dorsey  v.  Thompson,  37  Md.  25 211 

Dorwin  v.   Smith,   35  Vt.   69 211 

Doss  v.  Ditmars,  70  Ind.  451 219 

Douglas  v.  Union  Mut.  Life  Ins.  Co.,  127  111.  101,  20  N.  E.  51 112 

Douglass  v.  Stephenson's  Ex'rs,  75  Va.  747 202 

Dovey's  Appeal,  97  Pa.   St.   153 93 

Dow  v.  Jewell,  18  N.  H.  340 195 

Dowd  v.  Tucker,  41   Conn.   197 199 

Down  v.  Board  (Idaho)  26  Pac.  167 21 

Downie  v.  Nettleton,  61  Conn.  593,  24  Atl.  977 321 

Downing  v.   Blair,   75  Ala.   216 215 

v.  Marshall,  37  N.  Y.  380,  389 207 

Downs  v.  Collins,  6  Hare,  418,  437 269 

Drake  v.  Root,  2  Colo.  685 214 

Dresel  v.  Jordan,  104  Mass.  407 278 


CASES    CITED.  361 

Page 

Dresser  v.  Dresser,  46  Me.  48 174 

Drewe  v.  Corp.,  9  Ves.  3G8 285 

Drey  v.  Doyle,  99  Mo.  459,  12  S.  W.  2S7 81 

Drosier  v.   Brereton,   15  Beav.  221 204 

Drummond  v.  Alteraus,    60   Fed.  338 309 

v.  Tracy,  1  Johns.   Eng.   Ch.   608 171 

Drury  v.  Holden,  121  111.  130,  13  N.  E.  547 .219 

Dryden  v.  Frost,  3  Mylne  &  C.  670 234 

Dubuque  &  S.  C.  Ry.   Co.  v.  Cedar  Falls  &  M.  Ry.  Co.,  76  Iowa,  702, 

39  N.  W.  691 292 

Duclaud  v.  Rousseau,  2  La.  Ann.  168 214 

Dudley  v.  Congregation  of  St.  Francis,  138  N.  Y.  451,  458,  34  N.  E.  281.. .     15 

v.  Dudley,  76  Wis.  567,  45  N.  W.  602 161 

v.  Easton,  104  U.  S.  99,  103 100 

v.  Hurst,   67  Md.  44,  8  Atl.   "J01 290 

v.  Mayhew,   3  N.   Y.  9 307 

Duff  v.  Hopkins,  33  Fed.  599 271 

v.  McDonough,  155  Pa.  St.  10,  25  Atl.   60S 94 

v.  Russell,  14  N.  Y.  Supp.  134 296 

Duffy  v.  Shockey,  11  Ind.  70 10S 

Du  Hourmelin  v.  Sheldon,  1  Beav.  79 72 

Duke  of  Ancaster  v.  Mayer,  1  Brown,  Ch.  454,  1  White  &  T.  Lead.  Cas. 

Eq.    881 237 

Duke  of  Beaufort  v.  Neeld,  12  Clark  &  F.  248,  286 126 

Duke  of  Norfolk's  Case,  3  Ch.  Cas.  20,  28,  35 1S1 

Duke  of  Somerset  v.  Cookson,  3  P.  Wins.  389,  1  White  &  T.  Lead.  Cas. 

Eq.    1110 286 

Dull's  Appeal,  113  Pa.  St.  510,  6  Atl.  540 316 

Dummer  v.  Pitcher,  2  Mylne  &  K.  262 53 

Duncan  v.  Hayes,  22  N.  J.  Eq.  26 °03 

v.  Wallace,  114  Ind.   169,  170,  16  N.  E.  137 237 

Duncuft  v.  Albrecht,  12  Sim.  1S9 267 

Dungan  v.  Insurance  Co.,  46  Md.  469,  499 44 

Dungey  v.  Angove,  2  Ves.  Jr.  304 329 

Dunlap  v.  Burnett,  5  Smedes  &  M.  702 233 

Dunman   v.  Coleman,  59  Tex.  199 229 

Dunn,  Ex  parte,  8  Rich.  (N.  S.)  207 330 

v.  Amos,    14    Wis.    106 145 

v.  Barnum,  2  C.  C.  A.  265,  51  Fed.  355 96 

v.  Dunn,  42  N.  J.  Eq.  431,  7  Atl.  842 149 

v.  Flood,    28   Ch.   Div.   586 274 

v.  Miller,  96  Mo.  324,  9  S.  W.  640 316 

v.  Record,   63   Me.   17 149 

Dunne  v.  English,  L.  R.  18  Eq.  524 149 


362  CASES   CITED. 

Pac-s 

Dunphy  v.  Ryan,  11G  U.  S.  49S,  6  Sup.' Ct.  48G 2 

Punscoinb  v.  Dunscomb,  1  Johns.  Cli.  508 20 

Durette  v.   Briggs,  47   Mo.   356 235 

Durfee,   In  re,  4  R.   I.  401 211 

Parsley  v.   Fitzbardinge,   6  Yes.   251 323 

Put  ton  v.  Warschauer.  21  Cal.  GOO 85,  214 

v.  Willner,  52  X.    Y.  312 148 

Puvall  v.  Wellman,  124  N.  Y.  158,  2G  N.  E.  343 42 

Pwigbt  v.   Hamilton,    113  Mass.   175 29G 

v.  Scranton  &  W.  P.  Co.,  82  Mich.  624,  47  N.  W.  102 25G 

Pwinel  v.  Brown,   54  Me.   4G8 10S 

Pyer  v.  Pyer,  2  Cox,  92,  93,  1  White  &  T.  Lead.  Cas.  Eq.  314 194,  197 

v.  Hargrave.    10    Yes.    505 137 

v.  Martin,   4    Scam.   146 232 

v.  Shurtleff,    112    Mass.    1G5 14G 

Pyer's  Appeal,  107  Pa.  St.  44G 173 

Pynan  v.  McCulloch,  46  N.  J.  Eq.  11,  14,  18  Atl.  822 278 


E 

Eads  v.  Williams.  4  Pe  Gex,  M.  &  G.  674,  691 275 

Eages  v.  Wiswall,  2  Paige,  369 322 

Eaglesfield  v.  Marquis  of  Londonderry,  4  Ch.  Piv.  693,  702,  703 121 

Earle  v.  Norfolk  &  N.  B.  H.  Co.,  36  N.  J.  Eq.  1S8 145 

Earl  of  Aylesf ord  v.  Morris,  8  Ch.  App.  484 142 

Earl  of  Bath  v.  Sherwin,  4  Brown,  Pari.  Cas.  373 IS 

Earl  of  Glengall  v.  Frazer,  2  Hare,  99 322 

Earl  of  Granard  v.  Punkin,  1  Ball.  &  B.  207 30S 

Earl  of  Northumberland  v.  Earl  of  Aylesf  ord,  Amb.  540 58 

Earl  of  Oxford's  Case,  2  White  &  T.  Lead.  Cas.  Eq.  Ill 292 

Earl  of  Pertmore  v.  Taylor,  4  Sim.  182 142 

Earl  of  Pomfret  v.  Lord  Windsor,  2  Ves.  Sr.  472,  480 119 

Earl  Spencer  v.  Peek,  L.  It.  3  Eq.  415 323 

Earnest's  Appeal,  106  Pa.   St.  310 197 

East  v.  Polihite,  72  N.  C.  562 50 

East  Birmingham  Land  Co.  v.  Pennis,  85  Ala.  565,  5  South.  317 245 

Easterbrookes  v.   Tillinghast,  5  Gray,   17 193 

East  India  Co.  v.  Boddam,  9  Ves.  464,  466 12 

v.  Campbell,    1   Ves.    Sr.    246 321 

v.  Henchman,    1   Yes.   Jr.    289 148 

Eastman  v.  Amoskeag  Manuf 'g  Co.,  47  N.  H.  71 18 

v.  Plumer,  46  N.   H.   464 . 278 

v.  Savings  Bank,  58  N.  H.  421 ia 


CASES   CITED.  363 

Page 

Eastwood  v.  Vinke,  2  P.  Wins.  617 00 

East  &  West  R.  Co.  v.  East  Tennessee,  V.  &  G.  It.  Co.,  75  Ala.  275 298 

Eaton  v.  Benton,  2  Hill  (N.  Y.)  576 60 

v.  Davidson,  46  Ohio  St.  355,  364,  21  N.  E.  442 96 

v.  Whitaker,  18  Conn.  222,  229 281 

Eby's  Appeal,  84  Pa.   St.  241 72 

Eckstein  v.  Downing,  64  N.  H.  248 267 

Edison  Electric  Light  Co.  v.  Sawyer-Man  Electric  Co.,  3  C.  C.  A.  605, 

53  Fed.   592 41 

Edineston  v.  Lyde,  1  Paige  (N.  Y.)  641 159 

Edminster  v.  Higgins,   6  Neb.   265 233 

Edmonds  v.  Foley,  30  Beav.  2S2 322 

Edmonson  v.  Phillips,  73  Mo.  57 234 

Edwards  v.  Atkinson,  14  Tex.  373 279 

v.  McLeay,    2    Swanst.    287 138 

v.  Peterson,  80  Me.  367,  14  Atl.  936 243 

v.  Thompson,   71  N.   C.  177,  181 80 

v.  Warwick,   2  P.    Wms.    171 72 

v.  West,    7   Ch.   Div.  858 71 

Edwards'  Ex'rs  v.  Trumbull,  50  Pa.  St.  509 229 

Egbert  v.  Brooks,  3  Har.  (Del.)  112 206 

Egerton  v.  Brownlow,  4  H.  L.  Cas.  3,  10 183 

Eggleston  v.  Wagner,  40  Mich.  610,  10  N.  W.  37 277 

Eichelberger  v.  Gitt,  104  Pa.  St.  64 235 

Eilenbecker  v.  District  Ct.  of  Plymouth  Co.,  134  U.  S.  31,  10  Sup.  Ct.  424      9 

Eldridge  v.  Hill,  2  Johns.  Ch.  281 IS 

Ellard  v.  Llandaff ,  1  Ball  &  B.  241 138 

Ellett  v.   Newman,  92  N.    C.  519 331 

Ellice  v.  Roupell,  32  Beav.  299 323 

Ellicott  v.  Warford,  4  Md.  85 330 

Ellig  v.  Naglee,  9  Cal.  685 207 

Elliott  v.  Elliott,  117  Ind.  380,  20  N.  E.  2G4 175 

v.  Fisher,    12    Sim.    505 72 

v.  Sackett,  108  U.  S.  140,  2  Sup.  Ct.  375 219 

Ellis  v.  Andrews,  56  N.  Y.  85 135 

v.  Boston,  H.  &  E.  R.  Co.,  107  Mass.  28 330 

Ellison   v.   Ellison,   6  Ves.    662 179 

v.  Fox,  38  Minn.  454,  38  N.  W.  358 128 

Elmore  v.  Johnson,  143  111.  513,  32  N.  E.  413 149 

Elwood  v.  Bank,  41  Kan.  475,  21  Pac.  673 331 

Emack   v.   Kane,   34   Fed.   47 311 

Emanuel  College  v.  Evans,  1  Ch.  R.  18 24 

Emeric  v.  Alvarado,  90  Cal.  444,  27  Pac.  356 91 

Emerson  v.  Cutler,  14  Pick.  108 74 


364  CASES   CITED. 

Page 

Emery  v.  Lawrence,  8  Cush.   151 213 

Bmmerson'a  Case,  1  Ch.  App.  433 123 

Emmerl  v.  Stouffer,  64  Md.  543,  3  Atl.  273,  and  6  Atl.  177 277 

Emperor  of  Austria  v.  Day,  3  De  Gex,  F.  &  J.  217,  23S-241 8,  310 

Enebery  v.  Carter,  98  Mo.  647,  12  S.  W.  522 75 

England  v.  Curling.  8  Beav.  129 209 

v.  Downs,  2   Beav.  522 100 

Englar  v.  Offutt,  TO  Md.  78,  8G,  10  Atl.  497 28,  209 

English  v.  Newell,  42  N.  J.  Eq.  82,  6  Atl.  505 205 

Ensign  v.  Ensign,  120  N.  Y.  055,  24  N.  E.  942 216 

v.  Kellog,   4   Pick.    (Mass.)   5 206 

Epes  v.  Williams*  Adm'r   (Va.)   17  S.  E.  235 127 

Equitable  Mortgage  Co.  v.  Lowe  (Kan.)  35  Pac.  829 257 

Erickson  v.  Fisher,  51  Minn.  300,  53  N.  W.  638 136 

v.  Smith,  79  Iowa,  374,  44  N.  W.  681 232,  2:54 

Erkens  v.  Nicolin,  39  Minn.  461,  40  N.  W.  507 119 

Erlanger  v.  New  Sombrero  Phosphate  Co.,  3  App.  Cas.  1218,  1230 150 

Errington  v.   Aynesly,  2  Brown,  Ch.  341 20S 

Eskridge  v.  McClure,  2  Yerg.  (Tenn.)  80 233 

Etches  v.  Lance,  7  Ves.  417 325 

Euneau  v.  Rieger,  105  Mo.  059,  16  S.  W.  854 148 

Eutaw  Place  Baptist  Church  v.  Shively,  67  Md.  493,  10  Atl.  244 190 

Evans  v.  Bagshaw,  L.  It.  8  Eq.  469,  5  Ch.  App.  340 201 

v.  Enloe,  70  Wis.  345,  34  N.  W.  918,  36  N.  W.  22 233 

v.  Forstall,   58  Miss.   30 102 

v.  Llewellin,  1  Cox,  333,  340 145 

v.  Reading  Chemical  Fertilizing  Co.,  160  Pa.  St.  209,  28  Atl.  702 303 

Brants  v.  Strode,  11  Ohio,  480 120 

Everett  v.  Dilley,  39  Kan.  73,  17  Pac.  061 282 

Everitt  v.  Everitt,  L.  R.  10  Eq.  405 152 

Everts  v.  Agnes,  4  Wis.   356 95 

Evertson  v.  Booth,  19  Johns.  (N.  Y.)  495 257 

Ewer  v.  Hobbs,  5  Mete.  (Mass.)   1-3 215 

Ewing  v.  Ewing,  L.  R.  9  App.  Cas.  34 30 

Ewins  v.  Gordon.  49  N.  H.  444 282 

Exhall  Coal  Co.,  In  re,  35  Beav.  449 207 

Exon  v.  Dancke  (Or.)  32  Pac.  1045 80 

Eylar  v.  Eylar,  00  Tex.  315 SG 

v.  Read,    60   Tex.   387 250 

Eyre  v.  Everett,  2  Russ.  381,  382 12 

Ezzell  v.  Watson,  83  Ala.  120,  3  South.  309 223 


CASES   CITED.  365- 

F 

Page 

Fahnestock  v.  Fahnestock,  152  Pa.  St.  56,  25  Atl.  313 09 

Fairbank  v.  Cudworth,  33  Wis.   358 299 

Fairbanks  v.  Sargent,  104  N.  Y.  108,  116,  117,  9  N.  E.  10S,  870 245,  240 

Fairchild  v.  McMahon,  139  N.  Y.  290,  34  N.  E.  779 135 

Fairthorne  v.   Weston,  3  Hare,  387 312 

Falcke  v.   Gray,   4  Drew.   651 275 

Fall  v.  Hazelrigg,  45  Ind.  581 283 

Fall  River  Bank  v.  Bufflnton,  97  Mass.  498 50 

Fane  v.  Fane,  L.  R.  20  Eq.  698 139 

Fanning  v.  Dunham,  5  Johns.  Ch.  122,  142-144 37,  42 

Farmer  v.  Farmer,  39  N.  J.  Eq.  211 151 

v.  Martin,    2    Sim.    502 161 

Farmers'  Loan  &  Trust  Co.  v.  Postal  Tel.  Co.,  55  Conn.  334,  11  Atl.  1S4. .     30 

v.  Toledo  &  S.  H.  R.  Co.,  4  C.  C.  A.  501,  54  Fed.  759 94 

Farmers'  Nat.  Bank  v.  Moran,  30  Minn.  165,  14  N.  W.  805 185^ 

Farmington   Village  Corp.    v.    Sandy   River  Nat.   Bank,   85   Me.   47,   26 

Atl.    965 17 

Farris  v.  Hughes  (Va.)  17  S.  E.  518 2S5 

Farrow  v.  Wilson,  L.  R.  4  C.  P.  744 116 

Fay  v.   Fay,  121  Mass.  561 154 

Feamster  v.  Feamster,  35  W.  Va.  1,  13  S.  E.  53 147 

Fee  v.  Swingly,  6  Mont.  596,  13  Pac.  375 215 

Fellows  v.  Mitchell,  1  P.  Wms.  83 20S 

Fells   v.    Read,   3   Ves.    70 267 

Fenton  v.    Browne,   14   Ves.    144 135 

v.   Hughes,   7   Ves.   287 319' 

v.  Mackinac  Circuit  Judge,  76  Mich.  405,  43  N.  W.  437 261 

Ferbrache  v.  Ferbrache,   110  111.  210 281 

Ferebee  v.  Pritchard,  112  N.  C.  83,  16  S.  E.  903 161 

Ferrand  v.  Corporation  of  Bradford,  21  Beav.  412 305 

Fesmire,  Estate  of,  134  Pa.  St.  67,  19  Atl.  502 205 

Field  v.   Chipley,   79  Ky.   260 241 

v.  Leiter,  117  111.  341,  7  N.  E.  279 263 

v.  Mayor,   etc.,   6  N.    Y.   179 243 

Finch  v.  Finch,  10  Ohio  St.   501,   508 37 

Findlay  v.  Bank  of  U.  S.,  2  McLean,  44,  Fed.  Cas.  No.  4,791 255 

Finnegan  v.  City  of  Fernandina,  15  Fla.  379 23 

First  African  M.  E.  Soc.  v.  Brown,  147  Mass.  296,  298,  17  N.  E.  549 278 

First  Nat.  Bank  v.  Damm,  63  Wis.  249,  23  N.  W.  497 227 

v.  Dubuque   S.  W.  Ry.  Co.,  52  Iowa,  378,  3  N.  W.  395 243 

v.  Kreig  (Nev.)  32  Pac.  641 215 

v.  Sarlls,  129  Ind.  201,  28  N.  E.  434 10 


366  CASES   CITED. 

Page 
First  Nat  Bank  of  Salem  v.  Salem  Capital  Flour-Mills  Co.,  30  Fed.  SO,  95  234 

Firth  v.  Midland  Ry.  Co.,  L.  It.  20  Eq.  100 277 

Fischbeck  v.  Gross,  112  111.  208 200 

Fish  v.  Miller,  1  Hoff.  Ch.  2G7 152 

Fishack  v.  Ball,  34  W.  Va.  044,  12  S.  E.  856 2S7 

Fisher  v.  Banta,  60  N.  Y.  46S 72 

v.  Tunnard,  25  La.  Ann.  179 91 

Fitch  v.   Weber,  6   Hare,   145 76 

Fitzgerald  v.  Beebe,  7  Ark.   310 215 

v.  Stewart,  2  Russ.  &  M.  457 241 

Fitzmaurice  v.  Mosier,  116  Ind.  363,  16  N.  E.  175,  and  19  N.  E.  ISO 123 

Flagg  v.  Mann,  2  Sumn.  4S0,  533,  557,  Fed.  Cas.  No.  4,847 24,  86 

Flamang's  Case,  6  Ves.  147;  7  Ves.  305,  308;  18  Ves.  1S4 300 

Flanders  v.  Chamberlain.  24  Mich.  305,  315 226 

Fleetwood  v.  Brown  (Ind.  Sup.)  9  N.  E.  352 124 

Fleischner  v.  Citizens'  Real-Estate  &  Imp.  Co.  (Or.)  35  Pac.  174 14 

Fleming  v.  Beaver,  2  Rawle  (Pa.)  128 255 

v.  Burnham,  100  N.  Y.  1,  9,  2  N.  E.  905 278 

v.  Hislop,  11  App.   Cas.  691 303 

v.  Newton,  1  H.   L.  Cas.  363,  371,  376 310 

Fletcher  v.  Ashburner,  1  Brown,  Ch.  497,  499,  1  White  &  T.  Lead.  Cas. 

Eq.    826 26,  67 

v.  Ferrill,    9   Dana,    373 94 

v.  Holmes,  32  Ind.  497,  515 214 

v.  Peck,  6  Cranch,  87,  133,  134 105 

Flight  v.  Bolland,  4  Russ.  301 273 

Florence  Min.  Co.  v.  Brown,  124  U.  S.  385,  8  Sup.  Ct.  531 243 

Fluker  v.   Taylor,  3   Drew,   183 249 

Fobes  v.  Rome,  W.  &  O.  R.  Co.,  121  N.  Y.  505,  24  N.  E.  919 300 

Fogg  v.  Price,  145  Mass.  513,  14  N.  E.  741 277 

Folger  v.  Columbian  Ins.  Co.,  99  Mass.  207 335 

F.illausbee  v.  Johnson,  28  Minn.  311,  9  N.'W.  882 220 

Foil's   Appeal,   91    Pa.    St.   434 200 

Foose  v.    Whitmore,   82  N.   Y.   405 175 

Forbes   v.   Ross,  2   Cox,   116 146 

Force  v.  City  of  Elizabeth,  27  N.  J.  Eq.  408 116 

Ford  v.  Beech,  11  Q.  B.  SG6 128 

v.  Ford,  70  Wis.  19,  49,  33  N.  W.  188;  80  Mich.  42,  44  N.  W.  1057 09,  78 

v.  Harrington,    16   N.    Y.   285 42 

v.  Hennessy,    70    Mo.    580 153 

v.  Joyce,  78  N.  Y.  01S 315 

v.  Lewis,   10  B.   Mon.   127 180 

v.  Smith,    1    McArlhur,    592 232 

Foreman  v.  Hough,  98  N.  C.  386,  3  S.  E.  912 203 


CASES   CITED.  367 

Page 

Forrester  v.  Cotton,   1   Eden,  531 52 

v.  Flores,  64  Cal.  24,  28  Pac,  107 282 

Forster  v.  Hale,  3  Ves.  696 173 

v.  Ulman,  64  Md.   526,  3  Atl.    113 2 

Foster   v.   Deacon,  3   Madd.   394 284 

v.  Foster,   1   Ch.   Div.  588 73 

v.  Hall,  12  Pick.  (Mass.)  89 158 

v.  Mackinnon,  L.  R.  4  C.  P.  704,  711 123 

v.  Winchester,  92  Ala.  497,  9  South.  S3 41 

Fouch  v.   Wilson,  60  Ind.   64 232 

Fourth  Nat.  Bank's  Appeal,  123  Pa,  St.  4S4,  16  Atl.  779 219 

Fowkes  v.  Pascoe,  10  Ch.  App.  343,  350 64,  194 

Fowler  v.  Black,  136  111.  363,  26  N.  E.  596 120 

v.  Bott,   6  Mass.  63 v 115 

v.  Fowler,  4  De  Gex  &  J.  250 129 

v.  Garlike,   1  Russ.   &  M.  232 192 

v.  Heirs  of  Rust,  2  A.  K.  Marsh.  294 232 

Fowler's  Trust,  In  re,  27  Beav.  362 55 

Fox  v.  Hall,  74  Mo.  315 98 

v.  Mackreth,  2  Cox,  320,  2  Brown.  Ch.  400,  420;   1  White  &  T.  Lead. 

Cas.    Eq.    125 13S,  14G 

v.  Moyer,  54  N.  Y.  128 156 

v.  Palmer,  25  N.  J.  Eq.  416 104 

Foxwell  v.  Webster,  2  Drew  &  S.  250 17 

Foxworth  v.  White,  72  Ala.  224 207 

Frail  v.  Ellis,  16  Beav.  350 235 

Frame  v.  Frame,  32  W.  Va.  463,  9  S.  E.  901 2S2 

Francis  v.   Wells,  2  Colo.   660 232 

v.  Wilkinson,   147  111.  370,  35  N.   E.   150 145 

Frank  v.  Traylor,  130  Ind.  145,  29  N.  E.  486 255 

Franklin  Sav.  Bank  v.  Taylor,  131  111.  376,  23  N.  E.  397 94 

Franklin  Tel.  Co.  v.  Harrison,  145  U.  S.  459,  12  Sup.  Ct.  900 274 

Franks  v.  Bollans,  3  Ch.  App.  717,  718 75 

Fraser  v.  Trustees,  124  N.  Y.  479,  26  N.  E.  1034 71 

Freelove  v.  Cole,  41  Barb.  318 42 

Freeman  v.   Cooke,  2   Exch.   654 46,  48 

v.  Freeman,  43  N.  Y.  34 2S1,  282 

v.  Pope,   L.   R.   9  Eq.   211 157 

v.  Sedwick,  6  Gill  (Md.)  28 40 

Freeworth  v.  Banks,  8  Ves.  85 64 

Frenzel  v.  Miller,  37  Ind.  1 135 

Friedlander  v.  Texas  &  P.  Ry.  Co.,  130  U.  S.  416,  9  Sup.  Ct.  570 245 

Friend  v.  Lamb,  152  Pa.  St.  529,  25  Atl.  577 40,  274 

Frink  v.  Stewart,  94  N.  C.  484 300 


368  CASES    CITED. 

Pas© 

Frltzler  v.  Robinson,  70  Iowa,  500,  31  N.  W.  01 124 

Frue  v.  Houghton,  0  Colo.  318 267,  273 

Fry  v,  Piatt,  32  Kan.  02,  3  Pac.  781 148 

v.  Tapsou,   2S   Ch.    Div.    268 203 

Fuller  v.  O'Neil,  09  Tex.  349,  0  S.  W.  1S1 202 

Fulton  v.  Harman,  44  Md.  251 301 

Furlong  v.  Sanford,  87  Va.  50G,  12  S.  B.  1048 145 

G 

Gage  v.  Phillips.  21  Nev.  150,  20  Pae.  GO 123 

Gaines  v.  Fuentes,  92  U.  S.  17 307 

Galbraith  v.  Lunsford,  87  Tenn.  89.  105.  9  S.  W.  305 49 

Gallagher  v.  Gallagher,  31  W.  Va.  9,  14,  5  S.  E.  297 2S2 

Gallego's  Ex'rs  v.  Attorney  General,  3  Leigh,  450 187,  190 

Gahvay  v.  Metropolitan  El.  R.  Co.,  128  N.  Y.  132,  28  N.  E.  479 301 

Gamble  v.  Hamilton  (Fla.)  12  South.  229 102 

v.  Queens  County  Water  Co.,  123  N.  Y.  91,  98,  99,  25  N.  E.  201 313 

Gandy  v.  Macaulay,  31  Ch.   Div.  1 130 

Gans  v.  Thieine,  93  N.  Y.  225,  232 254 

Gardner  v.  Newburgh,  2  Johns.  Ch.  162 302,  305 

<  Garland  v.  Rives,  4  Rand.  (Va.)  282 38 

G  arner  v.  Reis,  25  Minn.  475 249 

Garrard  v.  Lauderdale,  2  Rus.3.  &  M.  452 179 

Garrison  v.  Crowell,  67  Tex.  626,  4  S.  W.  69 105 

Garvin  v.   Williams,  44  Mo.  465 152 

Gascoigne  v.  Thwing,  1  Vera.  366 196 

Gaskell  v.   Gaskell,   6  Sim.   643 260 

v.  Viquesney,  122  Ind.  244,  23^N.  E.  791 224 

Gaslight  &  Coke  Co.  v.  Vestry  of  St  Mary  Abbott's,  15  Q.  B.  Div.  1 297 

Gass  v.  Wilhite,  2  Dana  (Ky.)  170 188 

Gassen  v.  Hendrick,  74  Cal.  444,  16  Pac.  242 96 

Gates  v.  Cornett,  72  Mich.  420,  40  N.  W.  740 144 

v.  Steele,  58  Conn.  316,  20  Atl.  474 294 

Gault  v.  Wallis,   53  Ga.  675 9 

Gawtry  v.  Leland,  40  N.  J.  Eq.  323 295 

Gay  v.  Gay,  5  Allen  (Mass.)  157 250 

v.  Witherspoon  (Ky.)  16  S.  W.  96 145 

Gaylord  v.  City  of  Lafayette,  115  Ind.  423,  17  N.  E.  S99 222 

Gee  v.  McMillan,  14  Or.  268,  12  Pac.  417 233 

v.  Pritchard  (1818)  2  Swanst.  402,  413,  418 7,  308,  310,  311 

George  v.  Andrews,  60  Md.  26 220 

v.  Braddock,  45  N.  J.  Eq.  757,   18  Atl.  881... 190 

v.  Taylor,  55  Tex,   97 138 


CASES   CITED.  369 

»  Page 

Gerdine  v.  Menage,  41  Minn.  417,  43  N.  W.  91 121 

German  American  Sav.  Bank  v.  Fritz,  68  Wis.  390,  32  N.  W.  123 255 

Gest  v.  Packwood,  34  Fed.  368 96 

Gibbes  v.  Smith,  2  Rich.  Eq.  131 211 

Gibbs  v.  Guild,  9  Q.  B.  Div.  59 140 

Gibson  v.  Goldthwaite,  7  Ala.  281 326,  329 

v.  Ingo,    6    Hare,    112 267 

v.  Jeyes,  6  Ves.  266,  271 150 

Gifford  v.  Corrigan,  117  N.  Y.  257,  22  N.  E.  756 220 

Gilbert  v.  Port,  28  Ohio  St.  276,  296 69 

v.  Sutliff,   3   Ohio   St.    149 200 

Gilchrist  v.  Helena,  H.  S.  &  S.  R.  Co.,  58  Fed.  70S 21 

Gill  v.  Hardin,  48  Ark.  409,  3  S.  W.  519 47 

v.  Rice,    13    Wis.    549 251 

Gillam  v.  Taylor,  L.  R.  16  Eq.  581 188 

Gillespie  v.  Moon,  2  Johns.  Ch.  585 2S7 

Gillett  v.  Wiley,  126  111.  310,  323,  19  N.  E.  287 46 

Gilliam  v.   Chancellor,   43  Miss.   437,  448 15,59 

v.  McCormack,  85  Tenn.  597,  611,  4  S.  W.  521 258 

Gilman  v.  McArdle,  99  N.  Y.  451,  2  N.  E.  464 173,  182 

Gilmer  v.  Mobile  &  M.  Ry.  Co.,  79  Ala.  569 103 

Gilpatrick  v.  Glidden,  81  Me.  137,  10  Atl.  464 199 

Glass  v.  Hulbert,   102  Mass.  24,  34 129,  283 

v.  Rowe,  103  Mo.  513,  15  S.  W.  334 273 

Gleaton  v.  Gibson,  29  S.  C.  514,  7  S.  E.  833 14 

Glenorchy  v.  Bosville,  Cas.  t.  Talb.  5,  1  White  &  T.  Lead.  Cas.  Eq.  1 184 

Glyn  v.   Duesbury,  11   Sim.    139,    148 328 

Godfrey  v.  Black,  39  Kan.  193,  17  Pac.  849 295 

v.  Faulkner,  23  Ch.   Div.  483 202 

v.  White,  60  Mich.  443,  27  N.  W.  593 11,  203 

Godwin  v.  Collins,  4  Houst.   (Del.)  28 273 

Goebel  v.  Iffla,  111  N.  Y.  170,  177,  18  N.  E.  649 222 

Goldsmid   v.   Goldsmid,   1   Swanst.    211 67 

Goldsmith   v.    Guild,    10    Allen,    239 279 

Goldthwaite  v.  National  Bank,  67  Ala.  549 245 

Goninan  v.  Stephenson,  24  Wis.  75 138 

Goodell  v.  Union  Ass'n  of  Children's  Home,  29  N.  J.  Eq.  32 1SS 

Goodhart  v.  Hyett,  25  Ch.   Div.   190 298 

Goodman  v.  Winter,  64  Ala.  410,  432 11 

Goodrich,  Estate  of,  38  Wis.   492 174 

v.  Moore,  2  Minn.  61  (Gil.  49) 2 

Gordon  v.  Butler,   105  U.    S.  553 135 

v.  Gordon,  3  Swanst.  400,  475,  477 139 

Gordon  Tp.  v.  Shoemaker,  12  Ohio  St.  624 40 

eq.jur.— 24 


370  CASKS    CITED. 

Page 

Gorham  v.  Dodge,  122  111.  528,  14  N.  E.  44 51 

Gorman  v.  Low,  2  Bdw.  Ch.  (N.  Y.)  324 22 

Gormley  v.  Clark.  134  U.  S.  33S,  349,  10  Sup.  Ct.  554 14,  15 

Gormly  v.  Gormly,  130  Pa.  St.  4G7,  18  Atl.  727 121 

Gosling  v.   Warburton,  Cro.   Eliz.   128 55 

Gothard   v.    Flynn,    25   Miss.   58 229 

Gould  v.  Cayuga  Co.  Nat.  Bank,  86  N.  Y.  75 139,  140 

v.  Lynde,    114    Mass.    306 194 

Gove  v.  Learoyd,  140  Mass.  524,  5  N.  E.  499 194 

Gowland  v.   De  Faria,  17  Ves.   20 142 

Grabowski's  Settlement,  In  re,  L.  It.  6  Eq.  12 210 

Graham  v.  Call,  5  Munf.  (Va.)  396 277 

v.  Meyer,  99  N.  Y.  611,  1  N.  E.  143 138 

Grammel  v.  Carmer,  55  Mich.  201,  21  N.  W.  418 243 

Grand  Rapids  School  Furniture  Co.  v.  Haney  School  Furniture  Co.,  92 

Mich.  55S,  52  N.  W.  1009 311 

danger  v.  Crouch.  80  N.  Y.  494,  499 219 

Grant  v.  Beronio  (Cal.)  32  Pac.  556 286 

Grapengether   v.    Fejervary,   9  Iowa,    163 232 

Graves  v.  Coutant,  31  N.  J.  Eq.  763 234 

v.  Graves,    29    N.    H.    129 194 

Gray  v.   Coan,  40  Iowa,  327 104 

v.  Supreme  Lodge,  etc.,  118  Ind.  295,  297,  20  N.  E.  833 128 

v.  Suspension  Car  Truck  Manufg  Co.,  127  111.  1S7,  19  N.  E.  874 135 

< Waybill  v.  Braugh,  89  Va.  895,  17  S.  E.  558 273,  286 

Great  Falls  Co.  v.  Worster,  15  N.  H.  412,  444 216 

Greaves  v.  Topfield,  14  Ch.  Div.  563,  577 29,  103 

Green   v.  Biddle,  8  Wheat.  77 230 

v.  Bostwick,  1  Sandf.  Ch.  185 335 

v.  Dietrich,  114  111.  636,  3  N.  E.  800 196 

v.  Green,  41  Kan.  472,  21   Pac.  586 96 

v.  Lyon,  21  Wkly.  Rep.  830 2 

v.  Merchants'  Ins.  Co.,  10  Pick.  (Mass.)  402 139 

v.  Morris  &  E.  R.  Co.,  12  N.  J.  Eq.  165 120 

v.  Price,    13   Mees.    &    W.   695 110 

v.  Rick,  121  Pa.  St.  130,  15  Atl.  497 95 

v.  Sargeant,    23   Yt.   460 151 

v.  Sevin,  13  Ch.   Div.   589 279 

v.  Spicer,  1  Russ.  &  M.  395 ISO 

Greene  v.  Keene,  14  R.  I.  388,  395 23 

v.   Mmnford,    5    R.    I.    472 313 

v.  Tyler,    39    Pa.    St.    301 251 

Greenfield  Gas  Co.  v.  People's  Gas.  Co.,  131  Ind.  599,  31  N.  E.  61 10 

Greenfield's   Estate,    14   Pa.    St.   489 152 


CASES    CITED.  371 

Page 

Greenhill  v.  Greenhill,  2  Vern.   679 72 

Greeno  v.  Barnard,  18  Kan.  578 233 

Greenough  v.  Gaskell,  1  Mylne  &  K.  98 321 

v.  Small,  137  Pa.  St.  128,  20  Atl.  390 08 

Greenwaldt  v.  May,  127  Ind.  511,  27  N.  E.  158 294 

Greenway,  Ex  parte,  6  Ves.  812 114,  110 

Greer  v.  Caldwell,  14  Ga.  215 129 

Gregg  v.  Wells,  10  Adol.   &  E.   90 47 

Gregory  v.  Ingwersen,  32  N.  J.  Eq.  199 208 

Greshain  v.  Peterson,  25  Ark.  377 325 

Gresley  v.  Mousley  4  De  Gex  &  J.  78 149 

Gress  v.  Evans,  1  Dak.  387,  40  N.  W.  1132 97 

Gretton  v.  Haward,  1  Swanst.  409,  413,  433 51,  57 

Greville  v.  Browne,  7  H.  L.  Cas.  089 237 

Grey  v.   Grey,  2  Swanst.  594,  600 198 

Gribben  v.  Maxwell,  34  Kan.  8,  7  Pac.  5S4 143 

Griffies  v.  Griffies,  11  Wkly.  Rep.  943 202 

Griffin  v.  Fries,  23  Fla.  173,  2  South.  266 15,  110 

v.  Griffin,  18  N.  J.  Eq.  104 229  { 

v.  Hodshire,  119  Ind.  235,  21  N.  E.  741 222 

v.  Macaulay,  7  Grat.  470 200 

Griffith  v.  Sebastian  Co.,  49  Ark.  24,  3  S.  W.  880 124 

v.  Scott,  20  Ch.  Div.  358 53 

Grigsby  v.  Breckinridge,  2  Bush  (Ky.)  480 308 

Grimstone  v.  Carter,  3  Paige,  421 30 

Grisby  v.  Breckinridge,  2  Bush  (Ky.)  4S0 308 

Grissler  v.  Powers,  81  N.  Y .  57 50 

Groff  v.  State  Bank,  50  Minn.  234,  52  N.  W.  051 80 

Groundie  v.  Northampton  Water  Co.,  7  Pa.  St.  239 102 

Gruhn  v.  Richardson,  12S  111.  178,  21  N.  E.  18 232,  234 

Grumley  v.  Webb,  44  Mo.  444 14S 

Grymes  v.  Sanders,  93  U.  S.  55,  00 125,  120 

Guckenheimer  v.  Angevine,  81  N.  Y.  394 250 

Guerand  v.  Dandelet,  32  Md.  561 295 

Guggenheimer  v.  Groeschel,  23  S.  C.  274 154 

Guild  v.  Butler,  127  Mass.  386 253 

Gulley  v.  Macy,  84  N.  C.  434 91 

Gusdorf  v.  Ikelheimer,  75  Ala.  148 257 

Guthrie  v.  Walrond,  22  Ch.  Div.  573 53 

Gwynne  v.  Heaton,  1  Brown,  Ch.  8 141 


372  CASES    C1TKD. 

H 

Page 

Haack  v.  Welcfcen,  118  N.  Y.  G7,  23  N.  E.  133 53 

Backett  v.  Reynolds.  4  R.  I.  512 229 

I  hidden  v.  Spader,  20  Johns.  554,  562 23 

Haden  v.  Farmers'  &  M.  Fire  Ass'n,  80  Va.  083 270 

1  [after  v.  Strange,  05  Miss.  323,  3  South.  190 80 

Hagar  v.    Brainerd,  44  Vt.  294 210 

v.  Buck,  44  Vt.  285,  290 24,  239 

1  la-rnbeck  v.  Hagenbeck  Zoological  Arena  Co.,  59  Fed.  14 333 

I  taggerty  v.  Elyton  Land  Co.,  89  Ala.  428,  7  South.  051 278 

1  fcaigh  v.   Kayo,  7  Ch.  App.  409 193 

Haight   v.    Hayt,   19   N.    Y.   404 240 

Haines  v.  Carpenter,  1  Woods,  205,  206,  Fed.  Cas.  No.  5,905 333 

v.  Taylor,  10  Beav.  75 298 

Hale  v.  Nashua  &  L.  R.  Co.,  00  N.  H.  333 334 

v.  Wilkinson,  21  Grat.   (Va.)  75 274 

Halfhide  v.  Fenning,  2  Brown,  Ch.  337 209 

Hall  v.  Hall,  50  Conn.  104 229 

v.  Hardy,  3  P.  Wins.  190 270 

v.  Hill,  1  Dru.  &  War.  94,  103 55,  59 

v.  Joiner,  1  S.  C.  190 320 

v.  Knapponberger  (Mo.  Sup.)  6  S.  W.  381 152 

v.  Looinis,  63  Mich.  709,  30  N.  W.  374 272 

v.  Morgan,  79  Mo.  47 225 

v.  Sands,  52   Me.   355 150 

v.  Stout,  4  Del.  Ch.  209 323 

v.  Tunnell,  1  Houst.  320 215 

v.  Warren,   9  Yes.   005,   008 200 

v.  Wheeler,  37  Minn.  522,  35  N.  W.  377 121 

Hallett  v.  Wylie,  3  Johns.   44 115 

Hallett's  Estate,  In  re,  13  Ch.  Div.  090,  710,  727,  745 7,  28 

Halverson  v.  Brown,  75  Iowa,  702,  38  N.  W.  123 105 

Ham  v.  Johnson  (Minn.)  56  N.  W.  5S1 277 

Hamaker  v.  Schroers,  49  Mo.  400 109 

Hamblin  v.  Bishop,  41  Fed.  74 141 

I  [ambriek  v.  Crawford,  55  Ga.  335 293 

v.  Russell,  80  Ala.  199,  201,  5  South.  298 222 

Hamilton  v.  Whitridge,  11  Md.  128 304 

Hamlin  v.  Wright,  23  Wis.  491 335 

Hammond  v.  Hopkins,  143  U.  S.  224,  250,  12  Sup.  Ct.  418 43,  147 

v.  Messenger,    9    Sim.    327 239- 

v.  Peyton,  34  Minn.  529,  27  N.  W.  72 234 

v.  Winchester,  82  Ala.  470,  2  South.  892 301 


CASES    CITED.  6t  6 

Page 

Hammonds  v.  Barclay,  2  East,  227,  235 228 

Hanby  v.  Roberts,  Amb.  128 257 

Hancock  v.  Cossett,  45  Fed.  754 ' 314 

v.  McAvoy,  151  Pa.  St.  439,  25  Atl.  48 88 

Handley  v.  Heflin,  84  Ala.  GOO,  4  South.  725 13,  320 

Hanold  v.  Kays,  G4  Mich.  439,  31  N.  W.  420 96 

Hansard  v.  Robinson,  7  Barn.  &  C.  90 116 

Hansbrough's  Ex'rs  v.  Hooe,  12  Leigh  (Va.)  316 65 

Hansen  v.  Rounsavell,  74  111.   238 250 

Hanson  v.  Hanson,  70  Me.  508,  511 237 

v.  Keating,   4   Hare,   1 37 

v.  Willard,  12  Me.  147 262 

Hanstein  v.  Johnson,  112  N.  C.  253,  17  S.  E.  155 17 

Hapgood  v.  Rosenstock,  23  Fed.  86 267 

Harbers  v.  Gadsden,  6  Rich.  Eq.  (S.  C.)  284 286 

Hardee  v.  Howard,  33  Ga.  533 10S 

Hardeman  v.  Battersby,  53  Ga.  36,  38 116 

Harden  v.  Darwin,  66  Ala.  55 197 

Hardin  v.  Hardin,  34  S.  C.  77,  12  S.  E.  936 215 

Harding  v.  Fuller,  141  111.  308,  30  N.  E.  1053 14,  15 

v.  Long,  103  N.  C.  1,  9  S.  E.  445 129,  315 

Hardingham  v.  Thomas,  2  Drew,  353 58 

Hardman  v.  Ellames,  2  Mylne  &  K.  732 322 

Harford  v.  Purrier,  1  Madd.  532 284 

Hargro  v.  Hodgdon,  89  Cal.  623,  26  Pac.  1106 302 

Harmon  v.  Smith,  38  Fed.  482 237 

Harney  v.  Charles,  45  Mo.  157 120 

Harper's  Appeal,  04  Pa.  St.  315 216 

Harral  v.  Gray,  10  Neb.  186,  4  N.  W.  1040 100 

Harrington  v.  Bigelow,  11  Paige,  349 39,  40 

v.  Keteltas,  92  N.  Y.  40 201 

Harris  v.  Bannon,  78  Ky.  568 299 

v.  Hanie,  37   Ark.   348 234 

v.  Han-is,  29  Beav.  107 171 

v.  Tyson,  24  Pa.  St.  347,  360 13S,  141 

Harrison  v.  Forth,  Finch,  Prec.  51 98 

v.  Gibson,  23  Grat.  212 43 

v.  Guest,  6  De  Gex,  M.  &  G.  42S,  8  H.  L.  Cas.  481 144 

v.  Nettleship,  2  Mylne  &  K.  423 293 

v.  Smith,  83  Mo.  210 209 

v.  Wright,  100  Ind.  515 243 

Hart  v.  Swaine.  7  Ch.  Div.  42,  46 135 

Hartford  Fire  Ins.  Co.  v.  Haas  (Ky.)  9  S.  W.  720 125 


374  CASES    CITED. 

Page 

Hartley  v.  Harrison.  24  N.  Y.  170 220 

v.  Tapley,    2   Gray,    5G5 243 

Harvard  College  v.  Armory,  9  Pick.  446,  447,  4G1 204 

Haskell  v.  Haskell,  3  Cush.  542 321 

Hatch  v.  Hatch,  9  Ves.  292 150,  152 

v.  Village  of  St.  Joseph,  68  Mich.  220,  36  N.  W.  36 317 

Hatclur  v.  Hall,  77  Va.  578 43 

Hattersley  v.  Bissett  (N.  J.  Ch.)  25  Atl.  Rep.  332 52 

Haughwout  v.  Murphy,  22  N.  J.  Eq.  531 26 

Haven  v.  Foster,  9  Pick.  Ill,  112 119 

v.  Mehlgarten,  19  111.  95 231 

Havens  v.  Sackett,  15  N.  Y.  365 51,  52 

Haward  v.  Peavey,  128  111.  430,  21  N.  E.  503 68 

Hawes  v.  Oakland,  104  U.  S.  450 313 

Hawkins  v.  Holmes,  1  P.  Wms.  770 282 

v.  McDougal,  125  Ind.  597,  25  N.  E.  807 260 

Hawley  v.  Clowes,  2  Johns.  Ch.  122 300 

v.  James,  5  Paige,  318 77 

Hawthorne,  In  re,  23  Ch.  Div.  745 31 

Haydel  v.  Hurck,  72  Mo.  253 208 

Hayden  v.  Moffatt,  74  Tex.  647,  12  S.  W.  820 91 

Haydock  v.  Haydock,  33  N.  J.  Eq.  494 145 

Hayes  v.  Livingston,  34  Mich.  384 46 

v.  Nourse,  114  N.  Y.  606,  22  N.  E.  40 98 

v.  Ward,  4  Johns.  Ch.  123 254 

Hayes'  Appeal,  123  Pa.  St.  100,  16  Atl.  600 196 

Haygarth  v.  Wearing,  L.  R.  12  Eq.  320,  327,  328 135 

Haynes  v.  Mico,  1  Brown,  Ch.  130 60 

v.  Nice,   100   Mass.  327 251 

V.  Thompson,  SO  Me.  125,  13  Atl.  270 243 

v.  Waite,  14  Cal.  446 251 

v.  Whitsett,  18  Or.  454,  22  Pac.  1072 15 

Haynesworth  v.  Cox,  Harp.  Eq.  (S.  C.)  117,  119 162 

Hay  ward  v.  Andrews,  106  U.  S.  672,  675,  1  Sup.  Ct.  544 239 

v.  Hayward,  34  Ch.  Div.  198 310 

Haywood  v.  Cope,  25  Beav.  140 138 

Hazelrigg  v.  Bronaugh,  78  Ky.  62 330 

Headley  v.  Bell,  84  Ala.  346,  4  South.  391 293 

Hears  v.  Stanford,  Cas.  t.  Talb.  173 34 

Heath   v.   Williams,   25  Me.   209 305 

Hedderly  v.  Johnson,  42  Minn.  443,  44  N.  W.  527 278 

Hedges  v.  Dixon  Co.,  150  U.  S.  182,  14  Sup.  Ct.  71 22,  33 

Hefiin  v.  Milton,  69  Ala.  354 281 


CASES    CITED.  0/0 

Page 

Heine  v.  Levee  Commissioners,  19  Wall.  655,  658 22,  23 

Heiskell  v.  Trout,  31  W.  Va.  810,  8  S.  E.  557 192 

Heisler  v.  Sharp's  Ex'rs,  44  N.  J.  Eq.  167,  14  Atl.  624 61 

Hellams  v.  Abercrombie,  15  S.  C.  110 254 

Hellman  v.  McWilliams,  70  Cal.  449,  11  Pac.  659 173,  177 

Hellreigel  v.  Manning,  97  N.  Y.  56 278 

Helm  v.  Boyd,  124  111.  370,  16  N.  E.  85 216 

Hemphill  v.  Ross,  66  N.  C.  477 216 

v.  Yerkes,  132  Pa.  St.  545,  19  Atl.  342 243 

Hemphill's  Appeal,  18  Pa.   St.  305 204 

Hemsley  v.  Myers,  45  Fed.  283 9 

Hendee  v.  Cleaveland,  54  Vt.   142 150 

Henderson  v.  Johns,  13  Colo.  2S0,  22  Pac.  461 11 

v.  Overton,  2  Yerg.  394 33 

v.  Truitt,  95  Ind.  309 225 

Hendrick  v.  Whittemore,  105  Mass.  23 252 

Hendrickson  v.  Hinckley,  17  How.  (U.  S.)  443,  445 293 

Hendrix  v.  Nunn,  46  Tex.  142 19S 

Henkle  v.  Royal  Exch.  Assur.  Co.,  1  Ves.  Sr.  318 315 

Henley  v.  Hotaling,  41  Cal.  22,  28 217,  21S 

Hennessey  v.  Carmony  (N.  J.  Ch.)  25  Atl.  374 301 

v.  Woolworth,  128  U.  S.  440,  9  Sup.  Ct.  109 277 

Henry  v.  Henry,  27  Ohio  St.  121 2S3 

Henshaw  v.  Wells,  9  Humph.  568 216 

Herbert  v.  Herbert,  49  N.  J.  Eq.  70,  22  Atl.  7S9 116 

Heme  v.  Meeres,  1  Vera.  465 146 

Herrington  v.  McCullum,  73  111.  476 219 

Hess  v.  Singler,  114  Mass.  56,  59 175 

Hess'  Estate,  69  Pa,  St  272 255 

Hetzel  v.  Barber,  69  N.  Y.  1,  9,  11 79,  101 

Hewlett  v.  Pilcher,  85  Cal.  542,  24  Pac.  781 105 

Hexter  v.  Bast,  125  Pa.  St.  52,  72,  17  Atl.  252 135 

Heyder  v.  Excelsior  Building  Loan  Ass'n,  42  N.  J.  Eq.  403,  407,  408.  8 

Atl.    310 36,  106 

Hiatt  v.  Williams,  72  Mo.  214 2S1 

Hickman  v.  Green  (Mo.  Sup.)  22  S.  W.  455 8S 

Hicks  v.  Hicks,  3  Atk.  273 332 

v.  Turck,  72  Mich.  311,  40  N.  W.  339 30 

Hide  v.  Haywood,  2  Atk.  126 207 

Hiester  v.  Green,  48  Pa.  St.  96 233,  235 

Higgins  v.  Breen,  9  Mo.  497 240 

v.  Parsons,  65  Cal.  280,  3  Pac.  881 315 

Highberger  v.  Stiffler,  21  Md.  338,  352 144,  153 


376  CASES    CITKD. 

Page 

Bile  v.  Davison.  20  N.  J.  Eq.  229 313 

Hill  v.  Arnold,  79  Ga.  307 333 

v.  Barclay,  18  Ves.  50,  58,  02 117 

v.  Buckley,    17    Yes.    401 280 

v.  Cook,  1  Ves.  &  B.  175 70 

v.  Epley,  31   Pa.   St.  331 102 

v.  Hart-Davies,  21  Ch.  Div.  798 310 

v.  Hoole,  110  N.  Y.  299.  .",<  12,  22  N.  E.  547 246 

v.  Thompson,   3   Mer.    022 307 

Hilton  v.  Earl  of  Granville,  Craig  &  P.  283,  292 290,  298 

Hinchcliffe  v.  Hinchcliffe,  3  Ves.  516 65 

Hiuchingbroke  v.   Seymour,  1   Brown,   Ch.   395 162 

Hinckley,  Estate  of,  58  Cal.  457 190 

Hinde  v.  Blake,  3  Beav.  235 242 

Hine  v.  Dodd,  2  Atk.  275 92 

Ilinkle  v.  Margerum,  50  Ind.  240 313 

Hinson  v.  Williamson,  74  Ala.  180 205 

Hipp  v.  Babin,  19  How.  271,  277,  278 10,  11 

Hitchins  v.  Pettingill,  58  N.  H.  380 2S3 

Hitchman  v.   Stewart,  3  Drew,   271 252 

Hixon  v.  Oneida  Co.,  82  Wis.  515,  52  N.  W.  445 94 

Hobart  v.  Sanborn,  13  N.  H.  226 210 

Hobbs  v.  McLean,  117  U.  S.  567,  6  Sup.  Ct.  870 207 

Hobday  v.  Peters,  28  Beav.  349 152 

Hobson  v.  Trevor,  2  P.  Wms.  191 242 

Hocker  v.  Gentry,  3  Mete.  (Ky.)  403 70 

Hodge  v.  Amerman,  40  N.  J.  Eq.  99,  104,  2  Atl.  257 85 

v.  Giese,  43  N.  J.  Eq.  342,  11  Atl.  484 290 

v.  Ludlum,  45  Minn.  290,  47  N.  W.  805 49 

v.  Sloan,  107  N.  Y.  244,  17  N.  E.  335 103 

Hodges  v.  Kowing,  58  Conn.  12,  18  Atl.  979 11 

Hodgson  v.  Baldwin,  05  111.  532 252 

Hoffman  v.  Junk,  51  Wis.  013,  8  N.  W.  493 150 

v.  Macall,  5  Ohio  St  124 180 

v.  Noble,  6  Mete.  (Mass.)  68 95 

Hogan  v.  Jaques,  19  N.  J.  Eq.  123 192 

Hogg  v.  Kirby,  8  Ves.  223 307 

Hoghton  v.  Hoghton,  15  Beav.  299 152 

Holabird  v.  Burr,  17  Conn.  559 314 

Holbrook  v.  Connor,  00  Me.  578 135 

v.  New  Jersey  Zinc  Co.,  57  N.  Y.  GIG 94 

v.  Payne,  151  Mass.  383,  24  N.  E.  210 243 

Holden  v.  New  York  &  E.  Bank,  72  N.  Y   286,  292. 89 


CASES   CITED.  377 

Page 

Holland  v.  Adams,  3  Gray,  188,  191 74 

v.  Alcock,  108  N.  Y.  312,  16  N.  E.  305 190 

v.  Anderson,  38  Mo.  55 14 

v.  Cruft,  3  Gray,  162 74 

v.  Trotter,  22  Grat.  136 117 

Hollenbeck  v.  Donnell,  94  N.  Y.  312 333 

Holley  v.  Anness  (S.  C.)  19  S.  E.  646 , 11 

v.  Hardeman,  76  Ga.  328 250 

Holllngshead  v.  Webster,  37  Ch.  Div.  659 34 

Hollinshead  v.  Simms,  51  Cal.  158 198 

Hollis  v.  Francois,  5  Tex.  195 153 

Hollocher  v.   Holloeher,   62  Mo.   267 145 

Holman  v.  Patterson,  29  Ark.  357 235 

Holmes  v.  Buckner,  67  Tex.  107,  2  S.  W.  452 91 

v.  Caden,  57  Vt.  Ill 281 

v.  Dring,  2  Cox,  1 204 

v.  Gardner,  50  Ohio  St.  167,  33  N.  E.  644 105 

v.  Holmes,  86  N.  C.  205 281 

v.  Mead,  52  N.  Y.  332,  343 172 

v.  Powell,  8  De  Gex,  M.  &  G.  572,  580,  5S1 S5 

Holmes'  Appeal,  77  Pa.  St.  50 276 

Holroyd  v.  Marshall,  10  H.  L.  Cas.  191 229,  242 

Holsman  v.  Boiling  Spring  Co.,  14  N.  J.  Eq.  335 305 

Holton  v.  Noble,  83  Cal.  7,  23  Pac.  58 134,  137 

Honore's  Ex'r  v.  Bakewell,  6  B.   Mon.  67 234 

Honzik  v.  Delaglise,  65  Wis.  499,  27  N.  W.  171 S5 

Hood  v.  Fahnestock,  8  Watts,  4S9 105 

v.  Hood,  85  N.  Y.  561 72 

Hooker  v.  Oxford,  33  Mich.  454 199 

Hooper  v.  Smart,  L.  R.  18  Eq.  683 2S6 

v.  Winston,   24   111.   353 330 

Hopkins,  Appeal  of  (Pa.)  9  Atl.  867 209 

v.  Garrard,  7  B.  Mon.  312 8(5 

v.  Gilman,  22  Wis.  476 269,  277 

v.  Hopkins,  1  Atk.  591 16S 

Hopkinson  v.  Forster,  L.  K.  19  Eq.  74 243 

v.  Roe,  1  Beav.  ISO 207 

Hopper  v.  Conyers,  L.  R.  2  Eq.  549 209 

Hoppock's  Ex'rs  v.  United  New  Jersey  R.  &  C.  Co.,  27  N.  J.  Eq.  286 320 

Horbach  v.  Hill,  112  U.  S.  149,  5  Sup.  Ct  81 157 

Horn  v.  Cole,  51  N.  H.  287 46,  48,  49 

Horstman  v.  Kaufman,  97  Pa.  St.  147 321 

Hotchkys,  In  re,  32  Ch.  Div.  408 53 


378  CASES    CITED. 

Page 

Houghton,  Ex  parte,  17  Ves.  2.~>3 395 

v.  Davenport,   74    Me.   500 200 

Hoult  v.  Donahue,  21  W.  Va.  204,  300 35 

Houseman  v.  Girard  Mut  Bldg.  &  L.  Ass'n,  81  Pa.  St.  25G,  262 80 

Houston  v.  Bryan,  78  Ga.  181,  1  S.  E.  252 147 

v.  Timmerman,  17  Or.  400,  21  Pac.  1037 03,  04 

Hovey  v.  Dary,  154  Mass.  7,  27  N.  E.  G50 74 

How  v.  Tenants  of  Bronisgrove  (1681)  1  Vera.  22 16 

v.  Vigures,  1  Ch.  It.  32;    Totn.  132 213 

Howard  v.  Folger.  15  Me.  447 324 

v.  Gould.  28   Vt.  525 138 

v.  Harris,  1  Vera.  190,  2  White  &  T.  Lead.  Cas.  Eq.  1040 213 

v.  Kobinson,  5  Cush.  110,  123 215 

Howe,  In  re,  1  Paige,  125,  214 170,  220 

v.  Harding,  76  Tex.  17,  13  S.  W.  41 233 

v.  Howe,   00   Mass.   88 145 

v.  Xickerson,  14  Allen  (Mass.)  400 270 

v.  Wilson,  01  Mo.  45,  3  S.  W.  300 100 

Howell  v.  Coupland,  L.  R.  0  Q.  B.  462 115 

v.  Tomkins,  42  N.  J.  Eq.  305,  11  Atl.  333 57 

Howe  Maeh.  Co.  v.  Farrington,  82  N.  Y.  121 47,  130 

Howorth  v.   Dewell,  20  Beav.   18 174 

Howze  v.  Mallett,  4  Jones,  Eq.  104 62 

Hoyt  v.  Godfrey,  88  N.  Y.  669 155,  150 

v.  Hoyt,  85  N.  Y.  142 237 

Hudkins  v.  Ward,  30  W.  Va.  204,  3  S.  E.  600 257 

Hudson  v.  Bartram,  3  Madd.  440 270 

v.  Dismukes,  77  Va.  242 257 

Huff  v.  Shepard,  58  Mo.  242 277 

Huggensin's  Case,  2  Atk.  460,  488 310 

Hughes,  Ex  parte,  6  Ves.  617 14S 

v.  Jones,  116  N.  Y.  67,  22  N.  E.  446;  3  De  Gex,  F.  &  J.  307 143,  286 

v.  Morris,  2  De  Gex,  M.  &  G.  340,  356 282 

Hugonin  v.  Basely,  13  Ves.  107 330 

Huguenin  v.  Baseley,  14  Ves.  273,  275,  2  White  &  T.  Lead.  Cas.  Eq.  1156. . 

151—153 

v.  Courtenay,  21  S.  C.  403 274 

Huhlien  v.  Huhlien  (Ky.)  8  S.  W.  260 51 

Huish,  In  re,  43  Ch.  Div.  260 61 

Hull  v.  Pitrat,  45  Fed.  04 267 

Humphreys  v.  Merrill,  52  Miss.  02 100 

Hun  v.  Cary,  82  N.  Y.  65 202 

Hunkins  v.  Hunkins,  65  N.  H.  95,  18  Atl.  655,  665. 278,  2S2 


CASES    CITED.  379 

Page 

Hunsinger  v.  Hofer,  110  Ind.  390,  11  N.  E.  463 156 

Hunt  v.  Fowler,  121  111.  269,  276,  12  N.  E.  331,  and  17  N.  E.  491 188,  190 

v.  Peake,  Johns.  Eng.   Ch.  710 304 

v.  Rousmanier,  8  Wheat  174,  211,  212 32,  119,  120 

v.  Smith,  139  111.  296,  28  N.  E.  809 286 

Hunter  v.  Anderson,  152  Pa.  St.  3S6,  25  Atl.  538 75 

v.  Carroll,  64  N.  H.  572,  15  Atl.  17 40 

v.  Dennis,    112    111.    56S 224 

v.  Walters,  7  Ch.  App.  81 123 

v.  Watson,   12   Cal.   263 100 

Hunt's  Appeals,  105  Pa.  St.  128,  141 69 

Hurtado  v.  California,  110  U.  S.  530,  4  Sup.  Ct.  Ill,  292 2 

Huston's  Appeal,  69  Pa.  St.  485 258 

Hutchinson  v.  Ainsworth,  73  Cal.  458,  15  Pac.  82 129 

v.  Gilbert,  86  Tenn.  464,  469,  7  S.  W.  126 237 

Hutton  v.  Hutton,  40  N.  J.  Eq.  461,  2  Atl.  280 30 

Hyde  v.  Baldwin,  17  Pick.  303 51 

v.  Redding,  74  Cal.  493,  16  Pac.  380 317 

Hyett  v.  Mekin,  25  Ch.  Div.  735 73 

Hylton  v.  Hylton,  2  Ves.  Sr.  547-549 150,  152 


Ikerd  v.  Beavers,  106  Ind.  483,  7  N.  E.  326 273 

Illinois  Cent  R.  Co.  v.  McCullough,  59  111.  166 86 

Imbert,  Ex  parte,  1  De  Gex  &  J.  152 250 

Imperial  Gaslight  &  Coke  Co.  v.  Broadbent  7  H.  L.  Cas.  600 298 

Ind  v.  Emmerson,  12  App.  Cas.  300 106 

Indianapolis  Water  Co.  v.  American  Strawboard  Co.,  57  Fed.  1000 305 

Ingle  v.  Richards,  28  Beav.  361 147 

Ingram  v.  Morgan,  4  Humph.  (Tenn.)  66 36 

Insurance  Co.  v.  Mowry,  96  U.  S.  544,  547 47 

v.  Raden,  87  Ala.  311,  5  South.  876 120 

Ionides  v.  Pender,  L.  R.  9  Q.  B.  531,  537 139 

Irick  v.  Black,  17  N.  J.  Eq.  189 254 

Iron  Age  Pub.  Co.  v.  W.  U.  Tel.  Co.,  83  Ala.  498,  3  South.  449 20S,  273,  277 

Irvine  v.  Grady,  85  Tex.  120,  19  S.  W.  1028 88 

v.  Sullivan,  L.  R.  8  Eq.  675 193 

Irving  Nat  Bank  v.  Alley,  79  N.  Y.  536,  540 48 

Irwin  v.  Lewis,  50  Miss.  363 290 

Irwin's  Appeal,  35  Pa.  St.  294 205 

Isaac  v.  Defriez,  Amb.  595 188 


^80  CASES    CITED. 

Page 

Isaacs  v.  Strainka,  95  Mo.  517,  8  S.  W.  427 276 

I  BaacBOO  v.  Harwood,  3  Ch.  App.  225 210 

lvis  v.  Ashley,  97  Mass.  19S 151 

v.  Hazard,  4  R.  I.  14 273 

v.Stone,   51    Conn.    440 91 


J 

Jackens  v.  Nicholson,  70  Ga.  200 260 

Jacknian  v.  Mitchell,  13  Ves.  581 154 

Jackson  v.  Allen,  120  Mass.  79 47 

v.  Dubois,    4   Johns.    216 100 

v.  Duke  of  Newcastle,  3  De  Gex,  J.  &  S.  284 303 

v.  Lynch,  129  111.  72,  21  N.  E.  5S0,  and  22  N.  E.  240 95,  217 

v.  Phillips,  14  Allen,  539,  556 187,  189 

v.  Rowe,  2  Sim.  &  S.  472 96 

v.  Van  Valkenburgh,  8  Cow.  260 92 

v.  Veeder,  11  Johns.  169,  171 162 

Jacob  v.  Lucas,  1  Beav.  436 201 

Jacobs  v.  Morange,  47  N.  Y.  57 119 

Jacornb  v.  Knight,  3  De  Gex,  J.  &  S.  538 289 

Jacoway  v.  Gault,  20  Ark.  190 90 

Jaeger  v.  Hardy,  48  Ohio  St.  335,  27  N.  E.  863 86 

v.  Kelley,  52  N.  Y.  274 158 

James,  Ex  parte,  9  Ch.  App.  609;  8  Ves.  348 119,  147 

v.  Cowing,  82  N.  Y.  449 200 

v.  Cutler,  54  Wis.  172,  10  N.  W.  147 315 

Jaques  v.  Swasey,  153  Mass.  596,  27  N.  E.  771 64 

Jaquith  v.  Hudson,  5  Mich.  123,  136,  137 10S 

Jaudon  v.  Ducker,  27  S.  C.  295,  3  S.  E.  465 237 

Jefferys  v.  Boosey,  4  H.  L.  Cas.  833 307 

v.  Jefferys,  Craig  &  P.  138 27 

v.  Smith,  1  Jac.  &  W.  298 333 

Jeffries  v.  Evans,  6  B.  Mon.  119 245 

v.  Ferguson,  87  Mo.  244 252 

Jemmison  v.  Gray,  29  Iowa,  537 109 

Jenkins  v.  Clement,  1  Harp.  Eq.  (S.  C.)  72,  14  Am.  Dec.  705 157 

Jennings  v.  Broughton,  5  De  Gex,  M.  &  G.  126 137 

v.  Moore,  83  Mich.  231,  47  N.  W.  127 219 

Jennisons  v.  Leonard,  21  Wall.  302 279 

Jenny  v.  Crase,  1  Cranch,  C.  C.  (U.  S.)  443,  Fed.  Cas.  No.  7.2S5 298 

Jermy  v.  Preston,  13  Sim.  356 73 

Jerome  v.  McCarter,  94  U.  S.  734,  738  (canal) 334 


CASES    CITED.  381 

Page 

Jesus  College  v.  Bloom,  3  Atk.  262,  2G3 13 

Jew  v.  Wood,  Craig  &  P.  185 329 

Job  v.  Job,  6  Ch.  Div.  562 202 

John  A.  Roebling  Sons'  Co.  v.  First  Nat.  Bank,  30  Fed.  744 301 

Johnson  v.  Bartlett,  17  Pick.  477 255 

v.  Bloodgood,  1  Johns.  Cas.  51 230 

v.  Brooks,  93  N.  Y.  337,  343 266,  267 

v.  Dougherty,  18  N.  J.  Eq.  406 2S 

v.  Giles,  69  Ga.  652 198 

v.  Hoover,  72  Ind.  395 270 

v.  Houston,  47  Mo.  227 216 

v.  Leman,  131  111.  609,  23  N.  E.  435 207 

v.  Medlicott,  3  P.  Wins.  130 144 

v.  Moore,  33  Kan.  90,  5  Pac.  406 256 

v.  Shrewsbury  &  B.  R.  Co.,  3  De  Gex,  M.  &  G.  914 268 

v.  Straus  (C.  C.  Va.)  4  Hughes,  621-639,  26  Fed.  57 33 

v.  Telford,  1  Russ.  &  M.  244 54 

v.  Thomas,  77  Ala.  367 250,  251 

v.  Tucker,  2  Tenn.  Ch.  398 335 

v.  Williams,  37  Kan.  179,  14  Pac.  537 98 

v.  Zink,  51  N.  Y.  333 219 

Johnston  v.  Newton,  11  Hare,  1G0 202 

v.  Trippe,  33  Fed.  530,  536 273 

v.  Wadsworth  (Or.)  34  Pac.  13 273 

Jolland  v.  Stainbridge,  3  Ves.  478 S3,  92 

Jones  v.  Alephsin,  16  Ves.  471 325 

v.  Gibbons,  9  Ves.  410 244 

v.  Habersham,  107  U.  S.  174,  2  Sup.  Ct.  330 1SS 

v.  Jones,  8  Gill  (Md.)  197 54 

v.  Lewis,  2  Ves.  Sr.  240 110,  117 

v.  Lloyd,  117  111.  597,  7  N.  E.  119 210 

v.  Lock,  1  Ch.  App    25 178 

v.  Lockard,  89  Ala.  575,  8  South.  103 232,  234 

v.  Lusk,  2  Mete.  (Ky.)  350 94 

v.  Mason,  5  Rand.  (Va.)  577 59,  62,  64 

v.  Mayor,  etc.,  90  N.   Y.  3S7 242 

v.  Munroe,  32   Ga.   181 120 

v.  Newhall,   115   Mass.   244 2G6 

v.  Pugh,  1  Phil.  Ch.  9G 321 

v.  Renshaw,  130  Pa.  St.  327,  18  Atl.  651 190 

v.  Robbins,  29  Me.  351 279 

v.  Roberts,  6  Call  (Va.)  187 38 

v.  Sampson,  8  Ves.  593 325 


382  CASES    CITED. 

Page 

Jones  v.  Shaddock,  41  Ala.  262 208 

v.  Smith,  1  Hare,  43,  G3;  2  Ves.  Jr.  372,  378 8G,  87,  227 

v.  Williams,  Amb.  651 ;  39  Wis.  300 188,  250 

v.  Zollicoffer,  N.  C.  Term  R.  212 35 

Jope  v.  Morshead,  6  Beav.  213 2G1 

Jordan  v.  Cheney,  74  Me.  359 218 

v.  Lanier,  73  N.  C.  90 300 

v.  Miller,  75  Va.  442 332 

v.  Sayre,  29  Fla.  100,  10  South.  S23 214 

v.  Stevens,  51  Me.  78 120 

v.  Volkenning,  72  N.  Y.  300,  306 135 

Joseph  v.  Macowsky,  96  Cal.  518,  31  Pac.  914 40 

Joy  v.  St.  Louis,  138  U.  S.  1,  11,  47,  50,  11  Sup.  Ct.  243 22,  269 

Judge  of  Probate  v.  Mathes,  60  N.  H.  433 204 

Justice  v.  Wynne,  12  Ir.  Ch.  289 244 


K 

Kahn  v.  Walton,  46  Ohio  St.  195,  20  N.  E.  203 39,  41 

Kain  v.  Gibboney,  101  U.  S.  362 191 

Kamena  v.  Huelbig,  23  N.  J.  Eq.  78 245 

Kannady  v.  McCarron,  18  Ark.  166 215 

Kansas  City  Land  Co.  v.  Hill,  87  Tenn.  589,  11  S.  W.  797 SS 

Katz  v.  Brewington  (Md.)  20  Atl.  139 332 

Kauffelt  v.  Bower,  7  Serg.  &  R.  64,  76 231,  233 

Kavanagh  v.  Railroad  Co.,  78  Ga.  271,  273,  2  S.  E.  636 18 

Kay  v.  Kirk,  76  Md.  41,  24  Atl.  326 305 

v.  Whittaker,  44  N.  Y.  565,  572 222 

Kearny  v.  Jeffries,  48  Miss.  357 320 

Keate  v    Phillips,  18  Ch.  Div.  560,  577 46 

Keating  v.  Sparrow,  1  Ball  &  B.  373 Ill 

Keeble  v.  Keeble,  85  Ala.  552,  5  South.  149 108,  110,  111 

Keech  v.  Hall,   Doug.  22 214 

v.  Sandford,  1  White  &  T.  Lead.  Cas.  Eq.  53 199 

Keighler  v.  Savage  Manuf  g  Co.,  12  Md.  383 148 

Keister  v.  Myers,  115  Ind.  312,  17  N.  E.  161 127 

Keith  v.   Kellam,  35  Fed.   243 148 

Kekewich  v.  Manning,  1  De  Gex,  M.  &  G.  187,  188 179 

Keller  v.  Ashford,  133  U.  S.  610,  620,  10  Sup.  Ct.  494 220 

v.  Harper,  64  Md.  74,  1  Atl.  65 70 

Kelley  v.  Jenness,  50  Me.  455 195 

v.  Mayor,  etc,  of  Brooklyn,  4  Hill,  265 243 


CASES    CITED.  383 

Page 

Kelly  v.  Central  Pac.  R.  Co.,  74  Cal.  557,  16  Pac.  386 274,  276 

v.  Kauffman,   18  Pa.  St.  351 253 

v.  Kelly,  54  Mich.  47,  19  N.  W.  580 256 

v.  McGrath,  70  Ala.  75 160 

v.  Smith,  73  Wis.  191,  41  N.  W.  69 144 

v.  Turner,  74  Ala.  513 120 

Kelso  v.  Reid,  145  Pa.  St.  006,  23  Atl.  323 110 

Kemble  v.  Farren,  6  Bing.  141 107,  109 

Kemp  v.  Westbrook,  1  Ves.  Sr.  278 226 

Kemper  v.  Campbell,  44  Ohio  St.  210,  6  N.  E.  566 91 

Kendall,  Ex  parte,  17  Ves.  514,  520,  526,  527 32,  258 

v.  Granger,  5  Beav.  300,  302 187 

Kendrick  v.  Eggleston,  56  Iowa,  128,  8  N.  W.  786 232 

Kennedy  v.  Daly,  1  Schoales  &  L.  355,  379 98 

v.  Green,  3  Mylne  &  K.  699,  718 123 

V.  Johnston,  65  Pa.  St.  451 57 

v.  Parke,  17  N.  J.  Eq.  415 245 

v.  St.  Paul  &  P.  R.  Co.,  5  Dill.  519,  Fed.  Cas.  No.  7,707 334 

Kenner  v.  Bitely,  45  Fed.  133 285 

Kent  v.  Dunham,  142  Mass.  216,  7  N.  E.  730 190 

v.  Gerhard,  12  R.  I.  92 233,  235 

Kenyon  v.  Welty,  20  Cal.  637 119 

Kerby  v.  Kerby,  57  Md.  345 14S 

Kerr  v.  Corporation  of  Preston,  6  Ch.  Div.  463 9 

Ketcham  v.  Brazil  Block  Coal  Co.,  88  Ind.  515 329 

Ketchum  v.  Mobile  &  C.  R.  Co.,  2  Woods,  532,  Fed.  Cas.  No.  7,737 211 

v.  Spurlock,  34  W.  Va.  597,  12  S.  E.  832 12S 

Kettle  River  R.  Co.  v   Eastern  Ry.  of  Minn.,  41  Minn.  461,  43  N.  W.  469. .  103 

Keyes  v.  Carleton,  141  Mass.  49,  6  N.  E.  524 177 

v.  Wood,  21  Vt.  331 218 

Keys  v.  Williams,  3  Younge  &  C.  55,  462,  466,  467 229,  239 

Keyser's  Appeal,  57  Pa.   St.   236 180 

Kidd  v.  Horry,  28  Fed    773 311 

Kilbee  v.  Sneyd,  2  Moll.  199,  200 203 

Kilbourn  v.  Sunderland,  130  U.  S.  505.  518,  9  Sup.  Ct.  594 11,  140 

Killian  v.  Ebbinghaus,  110  U.  S.  56S,  573,  4  Sup.  Ct.  232 10,  328,  329 

Kimball  v.  Donald,  20  Mo.  577 243 

v.  Gafford,  78  Iowa,  65,  42  N.  W.  583 242 

v.  Morton,  5  N.  J.  Eq.  26 266 

Kimmel  v.  Lowe,  28  Minn.  265,  9  N.  W.  764 254 

King  v.  Denison,  1  Ves.  &  B.  272 193 

v.  French,  2  Sawy.  441,  Fed.  Cas.  No.  7,793 27 

v.  King,   6  Ves.   172 313,  332 

v.  Payn,  18  Ark.  583,  587,   588 13 


334  CASES    CITED. 

Pag© 

King  v.  Portis,  77  N.  C.  25 91 

v.  Smith.  2  Hare,  244 299 

v.  Talbot,  40  N.  Y.  70,  85,  80 202-204 

v.  Wilson,  0  Beav.  120 279 

v.  Young  Men's  Ass'n,  1  Woods,  380,  Fed.  Cas.  No.  7,811 235 

Kinne  v.  Webb,  54  Fed.  Rep.  34 101 

Kinney  v.  Kinney's  Ex'r,  80  Ky.  010,  6  S.  W.  593 1S8,  190 

Kirby  v.  Railroad  Co.,  120  U.  S.  130,  137,  7  Sup.  Ct.  430 140 

Kirchner  v.  New  Home  S.  M.  Co.,  135  N.  Y.  182,  31  N.  E.  1104 130 

Kirk  v.   Eddowes,  3  Hare,  509,  519 59,   03,  04 

v.Roberts    (Cal.)    31    Pac.    020 100 

v.  Williams,    24    Fed.    437 235 

Kirkpatrick  v.   Rogers,  7  Ired.   Eq.   44 237 

Kirksey  v.   Fike,  27  Ala.  383 209 

Kirwan's  Trusts,  In  re,  25  Ch.  Div.  373 101 

Kisterbock's  Appeal,   51   Pa.    St.   485 157 

Kitchell  v.   Mudgett,  37  Mich.  82 250 

v.  Young,  40  N.  J.  Eq.  500,  19  Atl.  729 237 

Kitteridge  v.   Chapman,  30  Iowa,   348 90 

Klein  v.  McNamara,  54  Miss.  90 217 

Kleinsorge  v.  Rohse  (Or.)  34  Pac.  874 125 

Kline  v.   Kline,   57  Pa.   St.   120 101 

v.  Yogel,  90  Mo.  239,  245,  1  S.  W.  733,  and  2  S.  W.  408 37 

Knapp  v.  Bailey,  79  Me.  195,  9  Atl.  122 82 

Knatchbull  v.   Grueber,   3  Mer.  124 285 

v.  Hallett,  13  Ch.  Div.  090,  710 21,  209 

Kneeland  v.  American  Loan  &  Trust  Co.,  130  U.  S.  89,  10  Sup.  Ct.  950. .  334 

v.  Bass  Foundry  &  Mach.  Works,  140  U.  S.  592,  11  Sup.  Ct.  857 334 

v.  Luce.  141  U.  S.  491,  12  Sup.  Ct  32 334 

Knight  v.  Glasscock,  51  Ark.  390,  11  S.  W.  580 127 

v.  Knight,  3  Beav.  148,  172 174 

Knobloch  v.  Mueller,  123  111.  554.  17  N.  E.  090 105 

Knoll  v.  Harvey,  19  Wis.  99 2S1 

Knouff  v.  Thompson,  10  Pa.  St.  301,  303 102 

Knowlton  v.  Keenan,  140  Mass.  80,  15  N.  E.  127 134 

v.  Walker,    13    Wis.    204 91 

Knox  v.   Easton,  38  Ala.  345 215 

v.  Knox,  59  Wis.  172,  IS  N.  W.  155 174 

Knox  Co.  v.  Harsham,  133  U.  S.  152,  10  Sup.  Ct.  257 293 

Konitzky  v.  Meyer,  49  N.  Y.  571 254 

Konvalinka  v.  Geibel,  40  N.  J.  Eq.  443,  440,  3  Atl.  200 70 

Koons  v.  Blanton,  129  Ind.  383,  27  N.  E.  334 '. .     43 

Kopper  v.  Dyer,  59  Vt.  477,  9  Atl.  4 117 

Kornegay  v.  Everett,  99  N.  C.  30,  5  S.  E.  418 120 


CASES    CITED.  385 

Page 

Kraemer  v.  Adelsberger,  122  N.  Y.  467,  25  N.  E.  859 218 

Kraft  v.    Lohniaii,   79  Ala.   323 211 

Kramer  v.  Williamson,  135  Ind.  655,  35  N.  E.  388 136 

Kreamer  v.  Earl,  91  Cal.  112,  27  Pac.  735 272 

Kramm  v.  Beach,  96  N.  Y.  398,  406 139 

Kullman  v.  Greenebaum,  92  Cal.  403,  28  Pac.  674 154 

Kyger  v.  Ryley,  2  Neb.  20,  28 215 

Kyle  v.  Fehley,  81  Wis.  67,  51  N.  W.  257 120 


L 

Labadie  v.  Hewitt,  85  111.  341 260 

Lacey,  Ex  parte,  6  Ves.  629 147 

Laclede  Bank  v.  Schuler,  120  U.  S.  511,  516,  7  Sup.  Ct.  644 243.  244 

Ladd  v.  Osborne,  79  Iowa,  93,  44  N.  W.  235 18,  301 

Lady  Thynne  v.  Earl  of  Glengall,  2  H.  L.  Cas.  131,  153 60,  64,  65 

Lafferty  v.  People's  Sav.  Bank,  76  Mich.  35,  43  N.  W.  34 237 

Lagow  v.  Badollet,  1  Blackf.  416 232 

Lahr  v.  Metropolitan  El.  Ry.  Co.,  104  N.  Y.  268,  10  N.  E.  52S 306 

Laidlaw  v.  Organ,  2  Wheat.   178 138 

Lake  v.   Brutton,  18  Beav.   34 255 

v.  Craddock,  3  P.  Wms.  158.  1  White  &  T.  Lead.  Cas.  Eq.  265.  ..195,  231 

v.  Gilson,  1  White  &  T.  Lead.  Cas.  Eq.  178 32 

Lamb  v.  Montague,  112  Mass.  352,  353 224,  255 

v.  Pierce,   113  Mass.   72 82 

Lambe  v.  Eames,  6  Ch.  App.  597 175 

Lambert  v.  Newman,  56  Ala.  623,  625,  626 83 

Lamm  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  45  Minn.  71,  47  N.  W.  455 306 

Lampet's    Case,    10   Coke,   48 238 

Lancaster  v.  Roberts  (111.  Sup.)  33  N.  E.  27 2S6 

Lancaster  Co.  Nat.  Bank,  v.  Moore,  78  Pa.  St.  407,  414 144 

Lance  v.  Norman,  2  Ch.  R.  79 160 

Lancy  v.  Randlett,  80  Me.  169,  13  Atl.  6S6 320 

Land   Co.   v.   Peck,   112  111.   408,   451 235 

Landon  v.  Townshend,  112  N.  Y.  93,  98,  19  N.  E.  424 222 

Lane    v.    Dighton,    Amb.    409 209 

v.  Marshall,  1  Heisk.  (Tenn.)  30,  34 13 

Langdon  v.  Astor's  Ex'rs,  16  N.  Y.  9,  39-41 63,  64 

v.  Sherwood,  124  U.  S.  81,  8  Sup.  Ct.  429 31 

v.  Templeton,  66  Vt.  173,  28  Atl.  866 41 

Langford  v.  Barnard,   Toth.  134 24 

v.  Gascoyne,    11   Ves.   333 205 

Langham  v.  Sanford,  17  Ves.  442 193 

eq.jtjk. — 25 


386  CASES    CITED. 

Page 

Lansing  t.  Smith,  8  Cow.  (N.  Y.)  146 301 

Lant'a   Appeal.    95   Pa.    St.   279 120 

Lapham  v.  Clapp,   10  R.  I.  543 237 

Larabrle  v.  Brown,  20  Law  J.  Eq.  605 326 

Latham  v.  Inman,  88  Ga.  505,  15  S.  E.  8 98 

Lathrop  v.  Bampton,  31  Cal.  17 210 

v.  Sinalley,  23  N.  J.  Eq.  192 211 

Lattimore  v.  Simmons,  13  Serg.  &  R.  183 240 

Latymer's  Charity,  In  re,  L.  R.  7  Eq.  353 188 

Laughlin  v.  Mitchell,  14  Fed.  382 190 

Laughton  v.  Harden,  68  Me.  213 158 

Lavender  v.  Abbott,  30  Ark.  172 235 

Lavenson  v.  Standard  Soap  Co.,  80  Cal.  245.  22  Pac.  184 299 

Law  v.  Grant,  37  Wis.  548 138 

La wes   v.    Bennett,   1   Cox,   167 71 

Lawrence  v.  Clark,  36  N.  Y.  128 154 

v.  Fox,   20   N.   Y.   268 220 

v.  Lawrence,   42  N.   H.   109 110 

v.  Rokes,   61   Me.   38 43 

Lawson  v.  Wooden-Wire  Co.,  59  Wis.  393,  18  N.  W.  440 305 

Lawton   v.   Gordon,   37   Cal.   202 S3 

Lazard  v.  Wheeler,  22  Cal.  139 240 

Leach  v.  Duvall,  8  Bush  (Ky.)  201 160 

Learned  v.  Hunt,  63  Miss.  373 305 

Leather  Cloth  Co.  v.  American  Leather  Cloth  Co.,  4  De  Gex,  J.  &  S.  137...  309 

v.  Lorsont,  39  Law  J.  Ch.  86 296 

Leather  Manuf'rs'  Nat  Bank  v.  Morgan,  117  U.  S.  96,  10S,  6  Sup.  Ct. 

657     47,  49 

Leavers  v.  Clayton,  8  Ch.  Div.  584 189,  192 

Leavitt  v.  Reynolds,  79  Iowa.  348,  44  N.  W.  507 219 

v.Yates,    4    Edw.    Ch.    102 330 

Lebanon  Sav.  Bank  v.  Hollenbeck,  29  Minn.  322,  13  N.  W.  145 S9 

Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  211,  215,  Cas.  t.  Talb.  88 66,  68 

v.   Lechmere,   Cas.   t.   Talb.   80 28,78 

Ledyard  v.   Butler,  9  Paige,   132 105 

Lee  v.  Clary,  38  Mich.  223 215 

v.  Gregory,  12  Neb.  282.  11  N.  W.  297 258 

v.  Kirby,  104  Mass.  420 275 

v.  Overstreet,  44  Ga.   507 109 

v.  Percival,  85  Iowa,  039,  52  N.  W.  543 128 

v.  Young.  2  Younge  &  C.  Ch.  532 211 

Leech  v.  Schweder,  9  Ch.  App.  463,  405 295 

Le  Gendre  v.  Byrnes,  44  N.  J.  Eq.  372,  14  Atl.  621.. 148 


CASES   CITED.  387 

Page 

Legg  v.  Goldwire,  1  White  &  T.  Lead.  Cas.  Eq.  17 129 

Lehigh  Val.  R.  Co.  v.  McFarlan,  31  N.  J.  Eq.  730 17 

v.  Woodring,  11G  Pa.  St.  513,  9  Atl.  58 243 

Lehman  v.  Collins,  69  Ala.  127 229 

Lehmann  v.  McArthur,  3  Ch.  App.  496 43 

Leicester  v.  Rose,  4  East,  372 154 

Leighton  v.  Orr,  44  Iowa,  679 145 

v.  Young,  10  U.  S.  App.  301,  3  C.  C.  A.  176,  52  Fed.  439 15 

Leitch  v.  Wells,  48  N.  Y.  585,  613 94 

Lembeck  v.  Nye,  47  Ohio  St.  336,  24  N.  E.  686 18,  300 

Lemmond  v.  Peoples,  6  Ired.  Eq.  (N.  C.)  137 180 

Lench  v.  Lench,  10  Ves.  517 196 

Le  Neve  v.  Le  Neve  (1747)  Amb.  436,  2  White  &  T.  Lead.  Cas.  Eq.  (4th 

Am.    Ed.)    109 92 

Lent  v.  Howard,  89  N.   Y.  169 203 

Lerow  v.  Wilmarth,  9  Allen  (Mass.)  386. 157 

Leslie  v.  Baillie,  2  Younge  &  C.  Ch.  91 119 

Lester  v.  Foxcroft,  Colles,  108,  1  White  &  T.  Lead  Cas.  Eq.  1027,  1038, 

1042    281 

Le  Texier  v.  Margrave  of  Anspach,  5  Ves.  322 321 

Letterstedt  v.  Broers,  9  App.  Cas.  371 211 

Levy  v.  Helberg,  67  Miss.  526,  7  South.  431 86 

v.  Levy,  33  N.  Y.  97,  107 172 

v.  Martin,  48  Wis.  198,  4  N.  W.  35 255 

Lewis'  Appeal,  67  Pa.  St.  153,  166 41 

In  re,  81  N.  Y.  421 200 

v.  Building  Ass'n,  70  Ala.  276 195 

v.  Cocks,  23  Wall.  466,  467,  470 10,  11 

v.  Darling,  16  How.  1 237 

v.  Hillman,  3  H.  L.  Cas.  607 148 

v.  Hinman,  56  Conn.  55,  13  Atl.  143 224 

v.  Palmer,  2S  N.  Y.  271 255 

v.  Smith,  9  N.  Y.  502,  510 26 

L.  H.  Harris  Drug  Co.  v.  Stucky,  46  Fed.  624 310 

Libby  v.  Hopkins,  104  U.  S.  303 250 

Lichty  v.  McMartin,  11  Kan.  565 223 

Lidderdale  v.  Robinson,  12  Wheat.  594 33 

Lillard  v.  Ruckers,  9  Yerg.  64 92 

Lincoln  v.  Little  Rock  Granite  Co.  (Ark.)  19  S.  W.  1056 110 

Lindley  v.  O'Reilly,  50  N.  J.  Law,  636,  640,  15  Atl.  379 31 

Lindsay  v.  Gibbs,  22  Beav.  522 242 

v.  Glass,  119  Ind.  301,  21  N.  E.  897 268 

Lindsay  Petroleum  Co.  v.  Hurd,  L.  R.  5  P.  C.  221 43 

Lindsley  v.  Ferguson,  49  N.  Y.  623 139 


388  CASES   CITED. 

Page 

Lipp  v.  Land  Syndicate,  24  Neb.  692,  40  N.  W.  129 217 

Lipplncott  v.  Kid-way.  10  N.  J.  Eq.  104 162 

Lissa  v.  Posey,  64  .Miss.  352,  1  South.  500 233 

Llthauer  v.  Royle,  17  N.  J.  Eq.  40 222 

Little  v.  Banks,  85  N.  Y.  258,  260 108 

v.  Chadwick.  151  Mass.  109,  23  N.  E.  1005 210 

v.  Willford,  31  Minn.  173,  17  N.  W.  2S2 190 

Littlehales  v.  Gascoine,  3  Brown,  Ch.  74 205 

LitUeton  v.  Fritz,  65  Iowa,  488,  22  N.  W.  641 9 

Livermore  v.  Maxwell  (Iowa)  55  N.  W.  37 102 

I.i\  Ingston  v.  Livingston,  4  Johns.  Ch.  294 110 

v.  Tompkins,  4  Johns.  Ch.  415,  431 112 

Llanover  v.  Hoinfray,  19  Ch.  Div.  224 323 

Llewellyn  v.  Badeley,  1  Hare,  527 321 

Lloyd  v.  Banks,  3  Ch.  App.  4S8 83 

v.  Galbraith,  32  Pa.  St.  103 25S 

v.  Loaring,  0  Ves.  773 207 

Lockett  v.  Robinson  (Fla.)  12  South.  049 21 

Lockwood  Co.  v.  Lawrence,  77  Me.  297 18 

Loftus  v.  Maloney,  S9  Va.  576,  16  S.  E.  749 144 

Logan  v.  Dixon,  73  Wis.  533.  41  N.  W.  713 253 

London,  C.  &  D.  R.  Co.  v.  Southeastern  R.  Co.  (1892)  1  Ch.  143 27 

London  &  S.  W.  R.  Co.  v.  Blackmore,  L.  R.  4  H.  L.  010,  G25 130 

Loney  v.  Courtnay,  24  Neb.  580,  39  N.  W.  616 38 

Long  v.   Fox,  100  111.  44 210 

v.  Miller,  93  N.  C.  233 250 

v.  Wier,  2  Rich.  Eq.  2S3 52 

Long  Dock  Co.  v.  Mallery,  12  N.  J.  Eq.  93 227 

Longrnate  v.  Ledger,  2  Giff.  157,  104 144 

Loog  v.  Bean,  20  Ch.  Div.  300 310 

Loomis  v.  Loomis,  20  Vt.  19S 245 

Lord  v.  Harte,  US  Mass.   271 159 

v.  Jeffkins,  35  Beav.  7,  9 142 

v.  Lord,  22  Conn.  595,  002 238 

Lord  Bernard's  Case,  Finch,  Prec.  Ch.  454,  2  Vera.  738 300 

Lord  Brook  v.  Lord  Hertford,  2  P.  Wins.  518 200 

Lord  Chichester  v.  Coventry,  L.  R.  2  H.  L.  71,  90,  95 58,  GG 

Lord  Elphinstone  v.  Monkland  Iron  &  Coal  Co.,  11  App.  Cas.  332 109,  111 

Lord  Montford  v.  Lord  Cadogan,  19  Yes.  030,  039,  640 210 

Lord  Portarlington  v.  Soulby  (1834)  3  Mylne  &  K.  104 30 

Lord  Tenham  v.  Herbert,  2  Atk.  483 10,  18 

Losey  v.  Simpson,  11  N.  J.  Eq.  240 91 

Loud  v.  Winchester,  04  Mich.  23,  30  N.  W.  890 202 

Lough  v.  Michael.  37  W.  Ya.  079,  17  S.  E.  181,  470 105 


CASES    CITED.  331) 

Page 

Louisiana  Nat.  Bank  v.  Knapp,  61  Miss.  485 234 

Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Ohio  Val.  Improvement  &  Contract  Co., 

57   Fed.  42 18 

Louisville  &  N.  R.  Co.  v.  Mississippi  &  T.  R.  Co.,  92  Tenn.  681,  22  S.  W. 

920 269 

Lovegrove,  Ex  parte,  3  Deac.  &  C.  763 207 

Lovell  v.  Cragin,  136  U.  S.  147,  10  Sup.  Ct.  1024 219 

v.  Hicks,  2  Younge  &  C.  Exch.  46 137 

v.  Wall,  31  Fla.  73,  12  South.  659 121 

Lovering  v.  Worthington,  106  Mass.  86 181 

Low  v.  Holmes,  17  N.  J.  Eq.  150 333 

Lowell  v.  Doe,  44  Minn.  144,  46  N.  W.  297 333 

Lowndes  v.  Cornford,  18  Ves.  299 326 

Lowry  v.  Smith,  97  Ind.  466 234 

Lowson  v.  Copeland,  2  Brown,  Ch.  156 201 

Luddy's  Trustee  v.  Peard,  33  Ch.  Div.  500 119 

Ludkins  v.  Aird,  6  Wall.  79 157 

Ludlow  v.  Kidd,  3  Ohio,  544 95 

Ludlum  v.  Rothschild,  41  Minn.  219,  43  N.  W.  137 242 

Luffberry's  Appeal,  125  Pa.  St.  513,  17  Atl.  447 76 

Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  616,  619 290,  295,  296 

Lumpkin  v.  Mills,  4  Ga.  343 255 

Lunn  v.  Shermer,  93  N.  C.  164 138 

Lunquest  v.  Ten  Eyck,  40  Iowa,  213 230 

Lutheran  Church  v.  Maschop,  10  N.  J.  Eq.  57 29S 

Lux  v.  Haggin,  69  Cal.  255,  266,  10  Pac.  674 48 

Lydick  v.  Holland,  83  Mo.  703 2S2 

Lyford  v.  Thurston,  10  N.  H.  399 208 

Lyman  v.  Babcock,  40  Wis.  503 109 

v.  Smith,   21   Wis.   674 219 

Lynch  v.  Metropolitan  El.  R.  Co.,  129  N.  Y.  274,  29  N.  E.  315 13 

Lyon  v.  Boiling,  9  Ala.  463 255 

v.  Home,   L.   R.   6  Eq.  655 153 

v.  Lyon,  65  N.  Y.   339 174 

v.  Powell,   78  Ala.  351 2G2 

v.  Richmond,  2  Johns.  Ch.  60 119 

Lyons  v.  Miller,  6  Grat.  427,  43S 14 

Lysaght  v.  Edwards,  2  Ch.  Div.  499,  506,  507 236 

v.  Walker,  5  Bligh  (N.  S.)  1,  28 250 


CASES    CITED. 

M 

Page 

McArter  v.   Kelly,  5  Ohio,  139 298 

Macartney   v.   Graham,  2  Sim.  285 110 

Macbryde  v.  Weekes,  22  Beav.  533 279 

McCabe  v.  Mathews,  40  Fed.  338 275 

McCartee  v.  Orphan  Asylum  Soc,  9  Cow.  (N.  Y.)  437 171 

McCarty  v.  Blevins,  5  Yerg.  195 172 

McCaull  v.  Braham,  16  Fed.  37 290 

McClellan  v.  McClellan,  05  Me.  504 173 

McClendon  v.  Bradford,  42  La.  100,  7  South.  78,  and  8  South.  250 148 

McClure  v.  Otrich,  118  111.  320,  8  N.  E.  784 200,  283 

McClurg's  Appeal,  58  Pa.  St.  51 295 

McCollister  v.  Willey,  52  Ind.  382 193 

McComb,  In  re,  117  N.  Y.  378,  22  N.  E.  1070 G8 

v.  Spangler,  71  Cal.  423,  12  Pac.  347 222 

McCone  v.  Courser,  04  N.  H.  300,  15  Atl.  129 102 

McCord  v.  Iker,  12  Ohio,  388 302 

McCormick  v.  Garnett,  5  De  Gex,  M.  &  G.  278 119 

v.  Grogan,  L.  R.  4  H.  L.  82,  97 29 

v.  Iloran,  81  N.  Y.  80 305 

v.  Rossi,  70  Cal.  474,  15  Pac.  35 112 

McCoy  v.  G  randy,  3  Ohio  St.  405,  400 230 

v.  Horwitz,  62  Md.  183 204 

v.  Nelson,  121  U.  S.  487,  7  Sup.  Ct.  1000 307 

v.  O'Donnell,   50   Md.    197 210 

McCulla  v.  Beadleston,  17  R.  I.  20,  20  Atl.  11 249 

McCully  v.  McCully,  78  Va.  159 195 

McCutchen  v.  Miller,  31  Miss.  00 94 

McDouald  v.  Yungbluth,  40  Fed.  830 2S3 

McDounel  v.  White,  11  H.  L.  Cas.  570 43 

MacDonough  v.  Gaynor,  18  N.  J.  Eq.  249 325 

McElhenuy's  Appeal,  40  Pa.   St.  347 207 

McEJroy  v.  Maxwell,  101  Mo.  294,  14  S.  W.  1 273 

McElvey  v.  Lewis,  70  N.  Y.  373 332 

McElwain  v.  Willis,  9  Wend.  (N.  Y.)  548 150 

McFadden  v.  Heney,  28  S.  C.  317,  5  S.  E.  812 75 

v.  Worthington,  45  111.  302. 100 

McGean  v.  Railroad  Co.,  133  N.  Y.  10,  30  N.  E.  047 13,  15 

McGehee  v.  Polk,  24  Ga.  400 325 

McGowan  v.  McGowan,  14  Gray,  119 195 

McGowin  v.  Remington,  12  Pa.   St.  50 207 

McGuire  v.  Ramsey,  9  Ark.  518,  527 190 

McHarry  v.  Irvin.  85  Ky.  322,  3  S.  W.  374,  and  4  S.  W.  S00 127 


CASES    CITED.  391 

Page 

Machemer's  Estate,  In  re,  140  Pa.  St.  544,  21  Atl.  441 08 

McHugh  v.  Smiley,  17  Neb,  620,  20  N.  W.  296 215 

McKecknie  v.  Hoskins,  23  Me.  230 8(5 

McKee  v.  Judd,  12  N.  Y.   622 240 

McKenna  v.  George,  2  Rich.  Eq.  (S.  C.)  15 252 

v.  Kirkwood,  50  Mich.  544,  15  N.  W.  S98 245 

Mackenzie,  Ex  parte,  L.  R.  7  Eq.  240 245 

v.  Johnston,  4  Madd.  373 249 

McKim  v.  Aulbach,  130  Mass.  481 205,  206 

McKinney  v.  Kuhn,  59  Miss.  186 326 

McKinnon  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800 135 

Mackintosh  v.  Ogilvie,  3  Swanst.  365 30 

Macknet  v.  Macknet,  29  N.  J.  Eq.  54 57 

McKnight  v.  Brady,  2  Mo.  110 233 

v.  Gordon,  13  Rich.  Eq.  222 101 

Mackreth  v.  Symrnons   (1808)  15  Ves.  329,  1  White  &  T.  Lead.  Cas.  Eq. 

447    232,  235 

McLanahan  v.  Reeside,  9  Watts,  50S 91 

v.  Universal  Ins.  Co.,  1  Pet  170,  1S5 139 

McLane  v.  Johnson,  43  Vt.  48 19S 

McLean  v.  Dow,  42  Wis.  610 49 

McLeod  v.  Evans,  66  Wis.  409,  23  N.  W.  173,  214 209 

Macloon  v.  Smith,  49  Wis.  200,  5  N.  W.  336 222 

McMahan  v.  Kimball,  3  Blackf.  (Ind.)  1 262 

McMahon  v.  Russell,  17  Fla,  698 214 

McMillan  v.  Bissell,  63  Mich.  66,  29  N.  W.  737 216 

v.  Jewett,  85  Ala.  476,  5  South.  145 216 

v.  Mason,  71  Wis.  405,  37  N.  W.  253 10 

v.  Richards,  9  Cal.  365 214 

v.  Rushing,   80   Ala.   402 44 

McNeil  v.  Magee,  5  Mason,  244,  Fed,  Cas.  No.  8,915 38,  269 

v.  Miller,  29  W.  Va.  480,  2  S.  E.  335 256 

v.  Tenth  Nat.  Bank,  46  N.  Y.  325 49,  246 

McQuddy  v.  Ware,  20  WalL  14-20 38 

McQueen  v.  Chouteau,  20  Mo.  222 15 

v.  Farquhar,  11  Ves.  467 2S5 

v.  McQueen,  2  Jones,  Eq.  16 54,  57 

McQuerry  v.  Gilliland,  89  Ky.  434,  12  S.  W.  1037 30,  51 

McVey  v.  Brendel,  144  Pa.  St.  235,  22  Atl.  912 40 

v.  Ritemous,  40  Ohio  St.  107 156 

McWhinne  v.  Martin,  77  Wis.  182,  46  N.  W.  118 2S1 

McWhirter  v.  Brainard,  5  Or.  426 21 

McWilliams  v.  Webb,  32  Iowa,  577 244 

Madden  v.  Barnes,  45  Wis.  135 235 


CASES    CITED. 

Page 

Maddison  v.  AJderson,  8  App.  Cas.  407,  474,  485 2S0,  281 

v.  Chapman,  1  Johns.  &  H.  470 53 

Madigan  v.  Mead,  31  Minn.  94,  10  N.  W.  539 210 

Magarlty  v.  Bhlpman,  82  Va.  7S4,  1  S.  E.  109 251 

Magniac  v.  Thompson,  15  How.  2S1 33 

Mahoney  v.  Bostwick,  90  Cal.  53,  30  Pac.  1020 38 

Major  v.  Bukley,  51  Mo.  227,  231 87 

Malcolm  v.  Andrews,  08  111.  100 325 

Maiden   v.   Menill,  2  Atk.  8 115 

Malins  v.  Freeman,  2  Keen,  25 270 

Mallalieu  v.  Wickham,  42  N.  J.  Eq.  297,  10  AU.  880 224 

Malone  v.  Philadelphia,  147  Pa.  St.  410,  23  Atl.  028 110 

Maloney  v.  Finnegan,  38  Minn.  70,  35  N.  W.  723 317 

Maltby  v.  Austin,  65  Wis.  527,  27  N.  W.  162 278 

Mammoth  Vein  Consol.  Coal  Co.'s  Appeal,  54  Pa.  St.  1S3 298 

Manby  v.  Bewieke,  3  Kay  &  J.  342 143 

Mandervllle  v.  Welch,  5  Wheat.  277 243 

Manhattan  Iron  Works  Co.  v.  French,  12  Abb.  N.  C.  440 9 

Mann,  Appeal  of  (Pa.  Sup.)  14  Atl.  270 237 

v.  Higgins,  83  Cal.  GO,  23  Pac.  200 277 

Mansell  v.  Mansell,  2  P.  Wms.  081 208 

Manser  v.  Back,  0  Hare,  443 2S7 

Mansfield  v.  Sherman,  81  Me.  305.  307,  17  Atl.  300 40 

Maps  v.  Cooper,  39  N.  J.  Eq.  310 29 

Marble  Co.  v.  Ripley,  10  Wall.  339,  359 273 

March  v.  Whitmore,  21  Wall.  178 43 

Marden  v.  Babcock,  2  Mete.  (Mass.)  104 158 

Mare  v.  Sandford,  1  Giff.  288 155 

Margraf  v.  Muir,  57  N.  Y.  155 270 

Marine  Ins.  Co.  v.  Hodgson,  7  Cranch,  332 29 

Marsan  v.  French,  01  Tex.  173 304 

Marsh  v.  Falker,  40  N.  Y.  502 135 

v.  Lee,  1  White  &  T.  Lead.  Cas.  Eq.  616,  2  Vent.  337 30 

v.  Marsh,  74  Ala.  418 129 

v.  Reed,  10  Ohio,  347 18 

Marshall  v.  Stephens,  8  Humph.  159 148 

Marshall's  Estate,  In  re,  147  Pa.  St.  77,  23  Atl.  391 69 

Marston  v.  Williams,  45  Minn.  116,  47  N.  W.  644 91 

Martin  v.  Funk,  75  N.  Y.  134,  137 177.  17S 

v.  Graves,  5  Allen  (Mass.)  661 316 

v.  Martin,  44  Kan.  295,  24  Pac.  418 15 

v.  Merritt,  57  lnd.  34 2S0 

v.  Morris,  02  Wis.  418,  22  N.  W.  525 97 

T.  Neblett,  86  Tenn.  3S3,  7  S.  W.  123 88 


CASES    CITED.  393 

Page 

Martin  v.  Veeder,  20  Wis.  466 241 

v.  Walker,  12  Hun,  46 156 

Martinez  v.  Moll,  46  Fed.  724 141 

Martinson  v.  Clower,  21  Ch.  Div.  S57 223 

Marvin  v.  Brooks,  94  N.  Y.  71 249 

Marx  v.  Schwartz,  14  Or.  177,  12  Pac.  253 250 

Mason  v.  Callender,  2  Minn.  350  (Gil.  302) 109 

v.  Morley,  34  Beav.  475 208 

v.  Pierron,  09  Wis.  585,  34  N.  W.  921 253 

Master  v.  Miller,  4  Term  R.  320,  340,  341 239 

Mathews  v.  Mathews,  2  Ves.  Sr.  635 61 

v.  Mobile  Mut.  Ins.  Co.,  75  Ala.  85,  90 33 

Matthai  v.  Heather,  57  Md.  483 157 

Matthews  v.  Crockett's  Adm'r,  82  V a.  394 141 

Mattison  v.  Marks,  31  Mich.  421 255 

Maud  v.  Maud,  33  Ohio  St.  147 277 

Maul  v.  Rider,  59  Pa.  St.  172 83 

Maupin  v.  Emmons,  47  Mo.  304 81 

Maxheld  v.  Burton,  L.  R.  17  Eq.  15 85 

Maxwell  v.  Hyslop,  L.  R.  4  Eq.  407 54 

v.  Maxwell,  2  De  Gex,  M.  &  G.  705.  713 53,  54 

Maxwell  Land  Grant  Case,  121  U.  S.  325,  7  Sup.  Ct.  1015 129 

May  v.  Thomson,  20  Ch.  Div.  705 268 

Maybee  v.  Moore,  90  Moore,  340,  2  S.  W.  471 283 

Mayer  v.  Association,  47  N.  J.  Eq.  519,  20  Atl.  492 311 

v.  McCreery,  119  N.  Y.  434,  23  N.  E.  1045 271 

Mayham  v.  Coombs,  14  Ohio,  428 92 

Mayhew  v.  Crickett,  2  Swanst.  185 255 

Mayne  v.  Griswold,  3  Sandf.  463 12 

Mayo  v.  Merrick,  127  Mass.  511 218 

Mayor  v.  Whittington  (Md.)  27  Atl.  984 81,  82 

Mayor  of  City  of  Macon  v.  Dasher,  90  Ga.  195,  16  S.  E.  75 105 

Mayor,  etc.,  of  Baltimore  v.  Warren  Manuf'g  Co.,  59  Md.  96,  110 305 

Mayor,  etc.,  of  Colchester  v.  Lowten,  1  Ves.  &  B.  226 170 

Mayor,  etc.,  of  New  York  v.  Pilkington  (1742)  2  Atk.  302;    (1737)  1  Atk. 

282   8,  16 

Mays  v.  Rose,  Freem.  Ch.  (Miss.)  703 331 

Meacham  v.  Steele.  93  111.  135 224 

Mead  v.  Bunn,  32  N.  Y.  275 136 

Meason  v.  Kaine,  63  Pa.  St.  335 269 

Mechanics'  Foundry  v.  Ryall,  75  Cal.  601,  17  Pac.  703 301 

Medford  v.  Levy,  31  W.  Va.  649,  8  S.  E.  302 40 

Medworth  v.  Pope,  27  Beav.  71 180 

Meech  v.  Allen,  17  N.  Y.  301 258 


CASES    CITED. 

Page 

Meek  v.  Perry.  30  Miss.  190 150 

Mehlhop  v.  l'ettibone,  54  Wis.  052,  11  N.  W.  553 158 

Meig's  Appeal,  02  Pa.  St.  28,  35 112 

Meigs  v.  Lister,  23  N.  J.  Bq.  199 303 

M.  1 1. -ii  v.  Moline  Malleable  Iron  Works,  131  U.  S.  352,  3G7,  9  Sup.  Ct.  781  11 

Mellon  v.  Heed,  123  Pa.  St.  1,  14,  15  Atl.  906 G9,  72,  75 

Mercantile  Trust  Co.  v.  Missouri,  K.  &  T.  R.  Co.,  36  Fed.  221 333 

Merewether  v.  Shaw,  2  Cox,  124 136 

Mevriam  v.  Goodlett,  36  Neb.  3S4,  54  N.  W.  686 270 

Merrifield  v.  Lombard,  13  Allen,  16 305 

Merriman  v.  Russell,  2  Jones,  Eg..  (N.  C.)  470 264 

Merry  v.  Abuey,  1  Cas.  Cb.  3S. 103 

Merryman  v.  Euler,  59  Md.  58S 149 

Merryweather  v.  Nixan,  8  Term  R.  186 253 

Merwin  v.  Austin,  58  Conn.  22,  18  Atl.  1029 254 

Methodist  Episcopal  Church  v.  Clark,  41  Mich.  730,  3  N.  W.  207 190 

Metier  v.  Metier,  18  N.  J.  Eq.  270 313 

Meyer  v.  Johnston,  53  Ala.  237,  348 334 

Michoud  v.  Girod,  4  How.  303 147 

Micklethwait  v.  Micklethwait,  1  De  Gex  &  J.  504,  524 300 

Middleton  v.  Greenwood,  2  De  Gex,  J.  &  S.  142 208 

Miles  v.  Dover  Furnace  Iron  Co.,  125  N.  Y.  294,  26  N.  E.  261 274 

v.  New  Zealand  Alford  Estate  Co.,  32  Ch.  Div.  266 121 

Milkman  v.  Ordway,  106  Mass.  232,  253 14,  286 

Millar  v.  Craig,  6  Beav.  433 127,  130 

Miller  v.  Cameron,  45  N.  J.  Eq.  95,  15  Atl.  842 273 

v.  Proctor,  20  Ohio  St.  442 202 

v.  Sherry,  2  Wall.  237 94 

v.  Warmington,  1  Jac.  &  W.  491 264 

Millican  v.  Millican,  24  Tex.  446 153 

Milligan's  Appeal,  104  Pa.  St.  503 225 

Mills  v.  Evansville  Seminary,  52  Wis.  669,  9  N.  W.  925 112 

v.  Farmer,   1   Mer.  55,  96 188 

v.  Fowkes,  5  Bing.  (N.  C.)  455,  461 251 

v.  Harris,  104  N.  C.  626,  10  S.  E.  704 68,  69 

v.  Newberry,  112  111.  123 175 

Millsaps  v.  Bond,  64  Miss.  453,  1  South.  506 257 

Milmine  v.  Bass,  29  Fed.  632 257 

Milner  v.  Milner,  1  Ves.  Sr.  106 129 

Milroy  v.  Lord,  4  De  Gex,  F.  &  J.  264,  274 177 

Miltenberger  v.  Logansport  Ry.  Co.,  106  U.  S.  286,  1  Sup.  Ct.  140 334 

Milwaukee  &  M.  R.  Co.  v.  Soutler,  13  Wall.  517 256 

Miner  v.  Beekman,  50  N.  Y.  337 230 

Minke  v.  Hopeman,  87  111.  450 10 


CASES   CITED.  395 

Paga 

Minneapolis  &  St.  L.  Ry.  Co.  v.  Cox,  76  Iowa,  306,  41  N.  W.  24 277 

Minnig's  Appeal,  82  Pa.  St  373 300 

Minor  v.  De  Vaughn,  72  Ga.  208 305 

v.  Rogers,  40   Conn.   512 178 

Minot  v.  Baker,  147  Mass.  348,  17  N.  E.  839 190 

Mitchell  v.  Bunch,  2  Paige,  617 325 

v.  Dawson,  23  W.  Va.  86 96 

v.  Hayne,  2  Sim.  &  S.  63 329 

v.  Henry,  15  Ch.  Div.  191 309 

v.  Ladew,  30  Mo.   526 219 

v.  Reed,  61  N.  Y.  123 199 

v.  Smith,  4  De  Gex,  J.  &  S.  422 178 

v.  Winslow,  2  Story,  630,  Fed.  Cas.  No.  9,073 242 

Moeckly  v.  Gorton,  78  Iowa,  202,  42  N.  W.  648 313 

Moelle  v.  Sherwood,  148  U.  S.  21,  13  Sup.  Ct.  426 i 98 

Moggridge  v.  Thackwell,  7  Ves.  56,  69 189 

Moncrief  v.  Ross,  50  N.  Y.  431 68,  71 

Monmouth  Park  Ass'n  v.  Wallis  Iron  Works,  55  N.  J.  Law,  132,  26  Atl. 

140    110,  128 

Monroe  v.  Fohl,  72  Cal.  568,  14  Pac.  514 252 

Montague  v.  Dudman,  2  Ves.  Sr.  396,  398 9 

Moutefiore  v.  Guedalla,  1  De  Gex,  F.  &  J.  93 64 

Montgomery  &  F.  Ry.  Co.  v.  McKenzie,  85  Ala.  549,  5  South.  322 14 

Mooney  v.  Cooledge,  30  Ark.  640 301 

Moore  v.   Baker,  34   Fed.   1 253 

v.Bennett,    2    Ch.    Cas.    246 87 

v.  Blake,  1  Ball  &  B.  62 275 

v.  Crawford,  130  U.  S.  122,  128,  9  Sup.  Ct.  447 27 

v.  Darby  (Del.  Ch.)  18  Atl.  768 262 

v.  Hinnant,  89  N.  C.  455 157 

v.  Ingram,  91  N.  C.  376 233 

v.  Jordan,  65  Miss.  229,  3  South.  737 192 

v.  Metropolitan  Nat.  Bank,  55  N.  Y.  41 49 

v.  Moore,  67  Tex.  293,  3  S.  W.  284;  4  Dana,  354 94,  190 

V.  Shurtleff,  128  111.  370,  21  N.  E.  775 225 

v.  Topliff,   107  111.  241 254 

Moores  v.  Townshend,  102  N.  Y.  387,  393,  7  N.  E.  401 317 

Movehead  v.  Eades,  3  Bush,   121 136 

Moreland  v.  Atchison,  19  Tex.  303 120 

Moreton  v.  Harrison,  1  Bland,  491 232 

Morgan,  In  re,  18  Ch.  Div.  93 199 

v.  Bell,  3  Wash.  554,  576,  28  Pac.  925 15,  119,  121,  286 

v.  Dinges,  23  Neb.  271,  36  N.  W.  544 135 


O'.'G  CASES    CITED. 

Page 

Morgan  v.  Marsack,  2  Mer.  107 326 

v.  Michigan  Air-Line  E.  Co.,  57  Mich.  430,  25  N.  W.  101,  and  26  N.  W. 

80S 252 

v.  Minett,  6  Ch.   Div.  638 152 

v.  Railroad  Co.,  96  U.  S.  716,  720 47 

Morgan's  Adm'r  v.  Brast,  34  W.  Va.  332,  12  S.  E.  710 285 

Moriarty  v.  Ashworth,  43  Minn.  1,  44  N.  W.  531 299 

Morice  v.  Bishop  of  Durham,  9  Ves.  399,  405 187 

Morland  v.  Cook,  L.  R.  6  Eq.  252 85 

Mormon  Church  v.  U.  S.,  136  U.  S.  1,  10  Sup.  Ct.  792 190 

Morphett  v.  Jones,  1   Swanst.  181 281 

Morrell  v.  Wootten,  16  Beav.  197 244 

Morrill  v.  Noyes,  56  Me.  463 330 

v.  St.  Anthony  Falls  Water-Power  Co.,  26  Minn.  222,  2  N.  W.  S12.  ..  305 

Moi  ris  v.  Nixon,  1  How.  118 24 

v.  Tuskaloosa  Manuf  g  Co.,  83  Ala.  565,  3  South.  689 295 

Morrison  v.  Herrick,  130  111.  631,  642,  22  N.  E.  537 281,  282 

v.  Kinstra,  55  Miss.  71 20S 

Morritt,  In  re.  18  Q.  B.  Div.  222 227 

Mortimer  v.  Cnpper,  1  Browne,  Ch.  158 127 

Mortlock  v.  Buller,  10  Ves.  292,  306,  315 131,  286 

Morville  v.  Fowle,  144  Mass.  109,  10  N.  E.  706 188 

Moses  v.  Mayor,  52  Ala.   198 9 

Moss  v.  Adams,  4  Ired.  Eq.  (N.  C.)  42,  51 251 

v.  Culver,  64   Pa.   St.   414 2S2 

Mott  v.  Clark,  9  Pa.  St.  399 98 

Mounce  v.  Byars,  16  Ga.  469 229 

ML  Holly,  L.  &  M.  Turnpike  Co.  v.  Ferree,  17  N.  J.  Eq.  117 329 

Mowday  v.  Moore,  133  Pa.  St.  611,  19  Atl.  626 302 

Mowry  v.  Wood,  12  Wis.  413 229 

Muckleston  v.  Brown,  6  Ves.  68 180 

Mucklow  v.  Fuller,  Jac.  198 205 

Mueller  v.  Engeln,  12  Bush,  441 S8 

Mugler  v.  Kansas,  123  U.  S.  623,  672,  8  Sup.  Ct.  273 9 

Muir  v.  Schenck,  3  Hill,  228 105 

Mullen  v.  Wilson,  44  Pa.  St.  413 157 

Muller  v.  Dows,  94  U.   S.  444 30 

v.  Rhuman,  62  Ga.  332 315 

Mullhall  v.  Quinn,  1  Gray,  105 243 

Mulry  v.  Norton,  100  N.  Y.  424,  3  N.  E.  581 300 

Mundy  v.  Jolliffe,  5  Mylne  &  C.  167 281 

v.  Mundy,  2  Ves.  Jr.  122 262 

Munson  v.  Syracuse  G.  &  C.  Ry.  Co.,  103  N.  Y.  58,  8  N.  E.  355 147,  150 


CASES    CITED.  397 

Page 

Murdoch  v.  Finney,  21  Mo.  13S 245 

Murphy  v.  Nathans,  46  Pa.  St.  50S 197 

v.  Rooney,  45  Cal.  7S 314 

v.  Smith,  86  Mo.   333 294 

v.  Webber,  61  Me.  47S 251 

Murray  v.  Ballou,  1  Johns.  Ch.  566 93,  94,  97 

v.  Drake,  46  Cal.  648 283 

v.  Gouverneur,  2  Johns.  Cas.  438,  441 236 

v.  Lylburn,  2  Johns.  Ch.  441 94 

v.  Murray,  90  Ky.  1,  13  S.  W.  244 1(51 

v.  Parker,  19  Beav.  305,  308 129 

Musprat  v.  Gordon,  1  Anst.  34 242 

Musselman  v.  Kent,  33  Ind.  452 40 

Mussey  v.  Sanborn,  15  Mass.  155 261 

Mussleman  v.  Marquis,  1  Bush  (Ky.)  463,  465 18,  300 

Mutual  Life  Ins.  Co.  v.  Bigler,  79  N.  Y.  568 299 

Myer  v.  Hart,  40  Mich.  517,  523 108 

Myers  v.  Estell,  48  Miss.  401 330 

Myres  v.  De  Mier,  4  Daly,  343;   52  N.  Y.  017 30 


N 

Nachtrieb  v.  Harmony  Settlement,  3  Wall.  Jr.  66,  Fed.  Cas.  No.  10,003. . .  153 

Nairn  v.  Prowse,  6  Ves.  752 235 

Naltner  v.  Dolan,  108  Ind.  500,  8  N.  E.  289 208 

Nash  v.  Hodgson,  6  De  Gex,  M.  &  G.  474 251,  252 

v.  Simpson,  78  Me.  142,  3  Atl.  53 261 

National  Bank  v.  Bigler,  83  N.  Y.  51 250 

National  Bank  of  America  v.  Indiana  Banking  Co.,  114  111.  483,  2  N.  E. 

401 243 

National  Docks  R.  Co.  v.  Central  R.  Co.,  32  N.  J.  Eq.  755 29S 

National  Ins.  Co.  v.  Pingrey,  141  Mass.  411,  6  N.  E.  93 329 

National  Park  Bank  of  New  York  v.  Goddard,  131  N.  Y.  494,  30  N.  E.  566     17 

National  Sav.  Bank  v.  Creswell,  100  U.  S.  630 225 

Navassa  Guano  Co.  v.  Richardson,  26  S.  C.  401,  2  S.  E.  307 215 

Naylor  v.  Winch,  1  Sim.  &  S.  564 121 

Neal  v.  Gregory,  19  Fla.  356 102 

Neall  v.  Hill,  16  Cal.  145 335 

Nease  v.  Aetna  Ins.  Co.,  32  W.  Va.  2S3,  9  S.  E.  233 11 

Xeeson  v.  Clarkson,  4  Hare,  97 230 

Neff's  Appeal,  57  Pa.   St.  91 201 

Negley  v.  Lindsay,  67  Pa.  St  217 139 


398  CASES    CITED. 

Page 

Neibert  v.  Baghurst  (N.  J.  Ch.)  25  Atl.  474 281 

Neill  v.  Shamburg,  158  Pa.  St.  263,  27  Atl.  992 138 

Neilson  v.  Williams,  42  N.  J.  Eq.  291,  11  Atl.  257 253 

Nell  v.  Dayton,  43  Minn.  242,  45  N.  W.  229 50 

Nelson  v.  Carlson  (Minn.)  55  N.  W.  821 140 

v.  Stocker,  4  De  Gex  &  J.  458,  464 40,  136 

Nesbit  v.  Lockman,  34  N.  Y.  167 152 

Ness  v.  Davidson,  49  Minn.  469,  52  N.  W.  46 70 

Neuendorff  v.  World  Mut.  Life  Ins.  Co.,  09  N.  Y.  389 148 

Nevins  v.  McKee,  61  Tex.  412 , 293 

Nevius  v.  Dunlap,  33  N.  Y.  676 129 

New  v.  Nicoll,  73  N.  Y.  127 207 

v.  Wright,  44  Miss.  202 312,  332 

Newcomb  v.  Gibson,  127  Mass.  396 253 

New  England  Trust  Co.  v.  Eaton,  140  Mass.  532,  4  N.  E.  09 201 

Newhall  v.  Kastens,  70  111.  156 328 

v.  Pierce,  5  Pick.  450 86 

Newland  v.  Attorney  General,  3  Mer.  684 188 

Newman,  In  re,  4  Ch.  Div.  724;  30  Beav.  196 109,  149 

v.  Willetts,  52   111.   98 156 

New  Orleans  Nat.  Banking  Ass'n  v.  Adams,  109  U.  S.  211,  3  Sup.  Ct  161  229 

Newport  Waterworks  v.  Sisson  (R.  I.)  28  Atl.  336 69 

Newsom  v.  Thornton,  82  Ala.  402,  8  South.  261 237 

Newton  v.  Bronson,  13  N.  Y.  587 30,  202 

v.  Tolles  (N.  H.)  19  Atl.  1092 124 

New  Vienna  Bank  v.  Johnson,  47  Ohio  St.  306,  24  N.  E.  503 229 

New  York  Dry-Dock  Co.  v.  American  L.  I.  &  T.  Co.,  11  Paige,  384 292 

New  York,  J.  G.  Soc.  v.  Roosevelt,  7  Daly,  188 311 

New  York  Mut.  Life  Ins.  Co.  v.  Armstrong,  117  U.  S.  591,  6  Sup.  Ct  877. .  39 

New  York  &  H.  R.  Co.  v.  Haws,  56  N.  Y.  175 117 

New  York  &  N.  H.  R.  Co.  v.  Schuyler,  17  N.  Y.  592 17 

Nibert  v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252 282 

Nicholls  v.  Maynard,  3  Atk.  519 109 

Nichols  v.  Allen,  130  Mass.  211 192 

v.  Easton,  91  U.   S.  720 159 

v.  Eaton,  91  U,  S.  716 180 

v.  McCarthy,  53  Conn.  299,  23  Atl.  93 147 

v.  Nichols,    28   VI.    228 261 

Nickels  v.  Phillips,  18  Fla.  732 211 

Nicodemus  v.  Nicodemus,  41  Md.  529 301 

Nidever  v.  Ayers,  83  Cal.  39,  23  Pac.  192 98 

Niggler  v.  Maurin,  34  Minn.  119,  24  N.  W.  369 218 

Nightingale  v.  Goulbourn,  2  Phil.  Ch.  594 188 


CASES    CITED.  399 

Page 

Niles,  In  re,  113  N.  Y.  547,  21  N.  E.  687 205 

v.  Davis,  60  Miss.  750 281 

Noble  v.  Moses,  74  Ala.  604;  81  Ala.  530,  1  South.  217 150 

v.  Walker,  32  Ala.  456 37 

Noonan  v.  Orton,  34  Wis.  259 240 

Norcross  v.  James,  140  Mass.  188,  2  N.  E.  946 103 

Norcutt  v.  Dodd,  1  Craig  &  P.  100 159 

Norfolk  &  N.  B.  Hosiery  Co.  v.  Arnold,  49  N.  J.  Eq.  390,  23  Atl.  514 135 

Norfolk  &  W.  R.  Co.  v.  Postal  Tel.  Cable  Co.,  88  Va.  932,  14  S.  E.  6S9 321 

Norris  v.  Hero,  22  La.  Ann.  605 208 

Norrish  v.   Marshall,  5   Mass.   475 244 

North  Baltimore  Bldg.  Ass'n  v.  Caldwell,  25  Md.  420 147 

Northern  Counties  of  Eng.  F.  Ins.  Co.  v.  Whipp,  26  Ch.  Div.  482 102 

Northern  Pac.  R.  Co.  v.  Amacker,  46  Fed.  233 17 

North  Nat.  Bank  v.  Hamlin,  125  Mass.  506 255 

Norton  v.  Coons,  6  N.  Y.  33,  40 252 

v.  Mascall,  2  Vern.  24 270 

Norway  v.  Rowe,  19  Ves.  159 333 

Nottley  v.  Palmer,  2  Drew,  93 55 

Noyes  v.  Marsh,  123  Mass.  286 267,  269 

Noys  v.  Mordaunt,  1  White  &  T.  Lead.  Cas.  Eq.  337 51 

Nunn  v.  Fabian,  1  Ch.  App.  35 282 


O 

Oakes  v.  Turquand,  L.  R.  2  H.  L.  345,  346 139 

v.  Turquand,  L.  R.  2  H.  L.  325 140 

Oakley  v.  Patterson  Bank,  2  N.  J.  Eq.  173 335 

O'Brien  v.  Anniston  Pipe  Works,  93  Atl.  582,  9  South.  415 110 

Occleston  v.  Fullalove,  9  Ch.  App.  147 180 

O'Conner  v.  Ward,  60  Miss.  1037 159 

O'Connor  v.  Gifford,  117  N.  Y.  245,  22  N.  E.  1036 201 

v.  Mechanics'  Bank,  124  N.  Y.  324,  26  N.  E.  810 243 

v.  Spraight,  1  Schoales  &  L.  303 249 

Odell,  Ex  parte,  10  Ch.  Div.  76 24 

Odlin  v.  Gove,  41  N.  H.  465 48 

Odom  v.  Riddick,  104  N.  C.  515,  10  S.  E.  609 98 

Official  Receiver  v.  Tailby,  18  Q.  B.  Div.  25 244 

Ogden  v.  Thornton,  30  N.  J.  Eq.  569 235 

Ogle  v.  Ogle,  41  Ohio  St.  359 234 

O'Hara,  In  re,  95  N.  Y.  403,  413,  414 199,  200 

Oil  Creek  R.  Co.  v.  Atlantic  &  G.  W.  R.  R.,  57  Pa.  St.  65 112 

O'Keeffe  v.  Calthorpe,  1  Atk.  17 211 


4U0  CASE8    CITED. 

Page 

Oldakcr  v.  Hunt,  6  De  Gex,  M.  &  G.  376 306 

Oliver  v.  Piatt,  3  How.  333 210 

v.  Sanborn,  GO  Mich.  340.  37  N.  W.  527 102 

Olliffe  v.  Wells,  130  Mass.  221 192 

Olmstead  v.  Abbott,  Gl  Vt  281,  18  Atl.  315 277 

Oregonian  By.  Co.  v.  Oregon  Ry.  &  Nav.  Co.,  37  Fed.  733 2G8 

O'Reilly  v.  Alderson,  8  Hare,  101 211 

v.  Bard,  105  Pa.  St.  509 253 

Ormiston  v.  Olcott.  84  N.  Y.  339,  343,  34G 204,  205 

O'Rourke  v.  O'Connor,  39  Cal.  442,  446 86 

Oit  v.  Newton,  2  Cox,  274 201 

Orrell  v.  Orrell,  6  Ch.  App.  302 54 

Orrick  v.  Durham,  79  Mo.  174 235 

Osborn  v.  Heyer,  2  Paige,  342 335 

Osborne  v.  Cabell,  77  Va.  462 220 

v.  Endicott,  6  Cal.  149 196 

v.  Kimball,  41  Kan.  187,  21  Pac.  163 283 

v.  Wisconsin  Cent.  K.  Co.,  43  Fed.  826 17 

Otis  v.  Gregory,  111  Ind.  504,  509,  13  N.  E.  39 37 

v.  Payne,  86  Tenn.  663,  8  S.  W.  848 102 

Ottcnheimer  v.  Cook,  10  Heisk.  (Tenn.)  309 119 

Ould  v.  Washington  Hospital,  95  U.  S.  303 190 

Overmire  v.  Haworth,  48  Minn.  372,  51  N.  W.  121 11 

Overton  v.  Banister,  3  Hare,  503 40 

Owen  v.  Ford,  49  Mo.  43G 298 

v.  Homan,  3  Macn.  &  G.  37S,  412 331 

Owens  v.  Owens,  100  N.  C.  240,  6  S.  E.  794 39 

Ownes  v.  Ownes,  23  N.  J.  Eq.  60 180 

Oxford's  Case,  Earl  of,  1  Ch.  R.  1,  2  White  &  T.  Lead.  Cas.  Eq.  1291 29 


Packard  v.  Packard,  16  Pick.  191,  194 261 

Packer  v.  Rochester  &  S.  It.  Co.,  17  N.  Y.  2S3 215 

Padgett  v.  Lawrence,  10  Paige,  180 96 

Padwick  v.  Hurst,  18  Beav.  575 249 

v.  Stanley,  9  Hare,  627 249 

Page  v.  Bent,  2  Mete.  (Mass.)  371,  374 134 

v.  Higgins,  150  Mass.  27,  22  N.  E.  03 125 

v.  Holman,  82  Ky.  573 208 

v.  Horne,  11  Beav.  227 153 

v.  Martin,  40  N.  J.  Eq.  5S5,  5S9,  20  Atl.  46 266 

v.  Waring,  76  N.  Y.  463 94 


CASES    CITED.  401 

Page 

Paige  t.  Banks,  13  Wall.  (508 308 

Pain  v.  Coombs,  1  De  Gex  &  J.  34,  40 281 

Paine  v.  Jones,  75  N.  Y.  593 314 

Palmer  v.  Ford,  70  111.  309 117 

v.  Gardiner,  77  111.  143 292 

v.  Hayes,  93  Ind.  189 292 

v.  Williams,  24  Mich.  328 200 

Palmeter  v.  Carey,  03  Wis.  420,  21  N.  W.  793,  and  23  N.  W.  5SG 219 

Papillon  v.  Voice,  2  P.  Wms.  471 184 

Paris  v.  Lewis,  85  I1L  597 98 

Parish  v.  Murphree,  13  How.  92 157 

Park  Bros.  &  Co.  v.  Blodgett  &  Clapp  Co.,  04  Conn.  2S,  29  Atl.  133 128 

Parker  v.  Coop,  60  Tex.  Ill 195 

v.  Dee,  2  Ch.  Cas.  200 13 

v.  Foy,  43  Miss.  200,  200 83 

v.  Hill,  8  Mete.  (Mass.)  447 91 

v.  Johnson,  37  N.  J.  Eq.  300 207 

v.  Nickerson,  112  Mass.  195 150 

v.  Nightingale,  6  Allen,  341,  344 103 

v.  Parker,  82  N.  C.  105 333 

v.  Sanborn,  7  Gray  (Mass.)   191 255 

v.  Sears,  1  Fish.  Pat.  Cas.  93,  Fed.  Cas.  No.  10,74S 307 

Parkhurst  v.  Hosford,  21  Fed.  827,  835 83 

v.  Kinsman,  0  N.  J.  Eq.  GOO 307 

v.  Lowten,  2  Swanst.  194,   210 321 

Parkin  v.  Thorold,  16  Beav.  59 278 

Parmelee  v.  Cameron,  41  N.  Y.  392 141 

Parmeter  v.  Bourne  (Wash.)  35  Pac.  5S0 21 

Parnell  v.  Hingston,  3  Smale  &  G.  337,  344 193 

Parsons  v.  Briddock,  2  Vern.  G0S 255 

Partridge  v.  Shepard,  71  Cal.  470,  12  Pac.  480 ISO 

Patch  v.  Ward,  3  Ch.  App.  203,  207 135 

Patchin  v.  Pierce,  12  Wend.  01,  03 227 

Patman  v.  Harland,  17  Ch.  Div.  355 87 

Patten  v.  Merchants'  &  F.  M.  F.  Ins.  Co.,  40  N.  H.  375. 89 

v.  Moore,   32  N.    H.  3S2 95 

Patterson  v.  Bloomer,  35  Conn.  57 129 

v.  Brown,  32  N.  Y.  81 40 

v.  Caldwell,  124  Pa.  St.  455,  17  Atl.  IS 242 

v.  Mills,  69  Iowa,  755,  28  N.  W.  53 173 

Pattison  v.  Skillman,  34  N.  J.  Eq.  344 267 

Patton  v.  Campbell,  70  111.  72 116 

Paul  v.  Connersville  &  N.  J.  R.  Co.,  51  Ind.  527 84 

Pawson  v.  Brown,  13  Ch.  Div.  202 193 

eq.jur.— 26 


402  CASES    CITED. 

Pago 

Payne  v.  Bullard,  23  Miss.  88,  90 13 

v.  Kansas  &  A.  V.  R.  Co.,  46  Fed.  .",4(5 290 

v.  Meller,  6  Ves.  349 26 

v.  Nowell,  41  La.  Ann.  852,  6  South.  630 234 

v.   Wilson.  74  N.   Y.   348 229 

Peabody  v.  Tarbell,  2  Cnsh.  (Mass.)  232 196 

Peachy  v.  Duke  of  Somerset,  1  Strange,  447,  2  White  &  T.  Lead.  Cas.  Eq. 

1082,  2014 24,   107,  111 

Peacock  v.  Evans,  16  Ves.  512 142 

Pea  k  v.  Ellicott,  30  Kan.  156,  1  Pac.  499 209 

Peake  v.  Ilighfield,  1  Russ.  559 316 

Pearce  v.  Buell,  22  Or.  29,  29  Pac.  78 136 

v.  Morris,  5  Ch.  App.  229 224 

v.  Ware.  94  Mich.  321,  53  N.  W.  1100 40 

v.  Wilson.  Ill  Pa.  St.  14,  2  Atl.  99 216 

Pearl  v.  Deacon,  24  Beav.  186 255 

Pearson  v.  Allen,  151  Mass.  79,  23  N.  E.  731 302 

v.  Cardon.  2  Russ.  &  M.  006,  609-612 328 

v.  Lane,  17  Ves.  101 78 

Pease  v.  Eagan,  131  N.  Y.  202.  30  N.  E.  102 254 

v.  Landauer,  63  Wis.  20,  22  N.  W.  847 243 

Peck  v.  Culberson,  104  N.  C.  426,  10  S.  E.  511 233 

v.  Elder,  3   Sandf.   126 303 

v.  Ellis,  2  Johns.  Ch.   131 253 

v.  .Tenness.   7   How.   012 228 

Peckliam  v.  Newton,  15  R.  I.  321,  4  Atl.  758 190,  204 

Pedesclaux  v.  Legare,  32  La.  Ann.  380 232 

Peek  v.  Peek.  77  Cal.  106,  19  Pac.  227 95,  100,  283 

Peers  v.  Lambert,  7  Beav.  546 285 

Peiffer  v.  Bates,  45  N.  J.  Eq.  311,  19  Atl.  612 35 

Peirce  Oil  Co.  v.  City  of  Little  Rock,  39  Ark.  412 9 

Peirsoll  v.  Elliott,  6  Pet  95 315 

Pell  v.  McElroy,  36  Cal.  268 80 

v.  Mercer,  14  R.  I.  412 190 

Pemberton  v.  Oakes,  4  Russ.  154,  108 251 

Pembroke  v.  Thorpe,  3  Swanst.  437 282 

Penhallow  v.  Kimball,  01  N.  H.  590 57 

Penn  v.  Guggenheimer,  76  Va.  839 51-53,  56,  58 

v.  Ingles,    82   Va.    69 15 

v.  Lord  Baltimore,  1  Ves.  Sr.  444 30 

Pennsylvania  v.  Wheeling  &  Belmont  Bridge  Co.,  13  How.  518 302 

Pennsylvania  Co.  for  Insurance  on  Lives  v.  American  Trust  Co.,  2  U.  S. 

App.  006,  5  C.  C.  A.  53,  and  55  Fed.  131 333 

Pennsylvania  R.  Co.  v.  Com.  (Pa.  Sup.)  7  Atl.  368 25 


CASES    CITED.  403 

Page 

Penny  v.  Watts,  2  De  Gex  &  S.  501 96 

Pennybacker  v.  Laidley,  33  W.  Va.  624,  11  S.  E.  39 136,  138,  14] 

Penrose  v.  Leeds,  46  N.  J.  Eq.  294,  296,  19  Atl.  134 275 

Penzel  v.  Brookmire,  51  Ark.  105,  10  S.  W.  15 219 

People  v.  Canal  Board  of  New  York,  55  N.  Y.  390,  394 313 

v.  Chicago  Gas  Trust  Co.,  130  111.  268,  22  N.  E.  798 25 

v.  E.  Remington  &  Sons,  121  N.  Y.  333,  24  N.  E.  793 258 

v.  Faulkner,  107  N.  Y.  477,  4S8,  14  N.  E.  415 202 

v.  Houghtaling,  7  Cal.  34S,  351 12 

v.  New  York  Co.,  5  Cow.  (N.  Y.)  331 252 

v.  New  York  &  S.  I.  P.  Co.,  68  N.  Y.  71 302 

v.  North  River  Sugar-Refining  Co.,  121  N.  Y.  582,  24  N.  E.  S34 25 

v.  Open  Board,  92  N.  Y.  98 277 

v.  Tioga  Common  Pleas,  19  Wend.  73. 240 

v.  Vanderbilt,  28  N.   Y.  396 302 

People's  Bank  v.  Bogart,  81  N.  Y.  101 138 

People's  Gas  Co.  v.  Tyner,  131  Ind.  277,  31  N.  E.  59 10 

People's  Sav.  Bank  v.  Bates,  120  U.  S.  556,  565,  7  Sup.  Ct.  679 96 

Percival  v.  Harger,  40  Iowa,  286 136 

Perkins  v.  Ede,  16  Beav.  193 285 

v.  Hall,  105  N.  Y.  539,  12  N.  E.  48 256 

v.  Partridge,  30  N.  J.  Eq.  82 135 

Perrott  v.  Shearer,  17  Mich.  48 255 

Perry  v.  Bozeman,  67  Ga.  643 250 

v.  Hale,  44  N.  H.  303,  367 257 

v.  Pratt,  31   Conn.  433 264 

Peter  v.  Beverly,  10  Pet.  532 26,  205 

Peters  v.  Bain,  133  U.  S.  670,  10  Sup.  Ct.  354 51 

v.  Cartier,  80  Mich.  124,  45  N.  W.  73 97 

v.  Florence,  38  Pa.  St.  194 119 

v.  Mortimer,  4  Edw.  Ch.  279 42 

v.  Tunell,  43  Minn.  473,  45  N.  W.  867 233,  234 

Petrain  v.  Kiernan,  23  Or.  455,  32  Pac.  158 85,  86 

Peugh  v.  Davis,  96  U.  S.  332,  336 216,  217 

Peynado  v.  Peynado.  82  Ky.  5 190 

Pfiffner  v.  S.  &  St.  P.  R.  Co.,  23  Minn.  343 282 

Pfister  v.  Wade,  56  Cal.  43 329 

Phelan  v.  Brady,  119  N.  Y.  587,  23  N.  E.  1109 85,  86 

Phelps,  Ex  parte,  9  Mod.  357 211 

Philbrick  v.  Shaw,  61  N.  H.  356 254 

Philbrook  v.  Delano,  29  Me.  410,  415 194,  233 

Phillips  v.  Edwards,  33  Beav.  440 282 

v.  Ferguson,  85  Va.  509,  8  S.  E.  241 77 

v.  Mayor,   etc.,  61   Ga.  386 9 


404  CASES    CITED. 

Page 
Phillips  v.  Moses,  65  Me.  70 251 

v.  Phillips,  4  De  Gex,  P.  &  J.  208,  215;   112  N.  Y.  197,  19  N.  E.  411;  9 

Hare,    471 30,  175,  249 

v.  Pullen,  45  N.  J.  Eq.  5,  830,  16  Atl.  9,  and  18  Atl.  S49 141,  293 

Philpott  v.  Jones,  2  Adol.  &  E.  41,  44 251 

Phipps  v.  Kelly,  12  Or.  213,  6  Pac.  707 12 

Phoenix  Ins.  Co.  v.  Ryland,  69  Md.  437,  10  Atl.  109 14 

Phyfe  v.  Wardell,  5  Paige,  268 199 

Pickard  v.  Sears,  6  Adol.  &  E.  469 40 

Pickering  v.  Day,  2  Del.  Ch.  333,  3  Houst.  (Del.)  474 250,  251 

v.  Ilfracombe  Ry.  Co.,  L.  R.  3  C.  P.  235 244 

v.  Pickering,  2  Beav.   50 121 

Pickersgill  v.  Rodger,  5  Ch.  Div.  163,  166,  170 52,  53 

Pickett  v.  Leonard,  104  N.  C.  320,  10  S.  E.  400 05 

Pierce  v.  Equitable  Assur.  Soc,  145  Mass.  60,  12  N.  E.  858 249 

v.  Pierce,  55  Mich.  629,  22  N.  W.  81 333 

v.  Plumb,  74  111.  326,  330,  331 270 

Pilling  v.  Armitage,  12  Ves.  78,  84 230 

Pirn  v.  Downing,  11  Serg.  &  R.  71 205 

Pinchin  v.  London  &  B.  Ry.  Co.,  5  De  Gex,  M.  &  G.  860 290 

Pindall  v.  Trevor,  30  Ark.  249 102 

Pinkum  v.  City  of  Eau  Claire,  81  Wis.  301,  51  N.  W.  559 14 

Piper  v.  Hoard,  107  N.  Y.  73,  13  N.  E.  026 22 

v.  Moulton,  72  Me.  155 188 

Pitcher  v.  Hennessey,  48  N.  Y.  415 120 

Pittsburg  v.  Danforth,  56  N.  H.  278 47 

Place  v.  Hayward,  117  N.  Y.  487,  497,  23  N.  E.  25 149 

Planters'  Bank  v.  Hornberger,  4  Cold.  531 149 

Planters'  &  Merchants'  Bank  v.  Walker,  7  Ala.  94<; 155 

Piatt  v.  Maples,  19  La.  Ann.  459 272 

v.  Woodruff,  61  N.   Y.  37S 29,  291 

Platto  v.  Deuster,  22  Wis.  482 294 

Pleasanton's  Appeal,  99  Pa.  St.  302 202 

Plumer  v.  Lord,  9  Allen,  455 49 

Pocock  v.  Attorney  General.  3  Ch.  Div.  342 188 

Poindexter  v.  Burwell,  82  Va.  507 30 

Pollard  v.  Clayton,  1  Kay  &  J.  402 275 

Polley  v.  Seymour,  2  Younge  &  C.  708 68,  70 

Poole  v.  Middleton,  29  Beav.  646 267 

Pooley  v.  Ray,  1  P.  Wins.  355 116 

Pope  v.  Cole,  55  N.  Y.  124 32 

v.  Farnsworth,  146  Mass.  339,  16  N.  E.  2G2 210 

Popp  v.  Swanke,  08  Wis.  304,  31  N.  W.  910 281 

Poppers  v.  Meager  (111.  Sup.)  35  N.  E.  805 110 


CASES    CITED.  405 

Page 

Popplein  v.  Foley,  61  Md.  381 266 

Porter  v.  Cole,  4  Me.  20 92 

v.  Frenchman's  Bay  &  Mt  D.  Land  &  Water  Co.,  84  Me.  195,  24  Atl. 

814   10 

v.  Spencer,  2  Jobns.  Ch.  109,  171 323 

v.  Williams,  9  N.  Y.  142 335 

Portland  v.  Topham,  11  H.  L.  Cas.  32 161 

Port  of  Mobile  v.  Louisville  &  N.  R.  Co.,  84  Ala.  115,  4  South.  100 301 

Post  v.  Toledo,  etc.,  R.  Co.,  144  Mass.  341,  11  N.  E.  540 320 

v.  West  Shore  R.  Co.,  123  N.  Y.  581,  26  N.  E.  7 268 

Potter  v.  Hollister,  45  N.  J.  Eq.  50S,  18  Atl.  204 30 

v.  McDowell,  31  Mo.  62 158 

v.  Sanders,  6  Hare,  1 103 

v.  Whitney,  1  Lowell  (U.  S.)  87,  Fed.  Cas.  No.  11,341 307 

Powell  v.  Adams,  98  Mo.  598,  12  S.  W.  295 136 

v.  Attorney  General,  3  Mer.  48 188 

v.  Bentley  &  G.  Furniture  Co.,  34  W.  Va.  801,  12  S.  E.  1085 303 

v.  Campbell,  20  Nev.  232,  20  Pac.  156 93 

v.  Cheshire,  70  Ga.   357 301 

v.  Earl  of  Powis  (1826)  1  Younge  &  J.  158 16 

v.  Evans,  5  Ves.  839 201 

v.  Glover,  3  P.  Wms.  251   150 

v.  Howell,  63  N.  C.  284 156 

v.  Jones,  72  Ala.  392 229 

v.  Powell,  80  Ala.   11 147 

v.  Smith,  L.  R.  14  Eq.  85,  90 119,  120 

Powell  D.  S.  C.  Co.  v.  Taff  Vale  Ry.  Co.,  9  Ch.  App.  331 269 

Powys  v.  Mansfield,  3  Mylne  &  C.  359 63 

Poyer  v.  Village  of  Desplaines,  123  111.  Ill,  13  N.  E.  819 9 

Pratt  v.  California  Min.  Co.,  24  Fed.  S69 43 

v.  Radford,  52  Wis.  114,  8  N.  W.  606 255 

v.  Thornton,  28  Me.  355 38 

Pray  v.  Clark,  113  Mass.  283 277 

Preston  v.  Mann,  25  Conn.  118,  129 48 

v.  Preston,  95  U.  S.  200 277 

v.  Tubbin,  1  Vern.  286 89 

Preteca  v.  Maxwell  Land  Grant  Co.,  4  U.  S.  App.  326,  1  C.  C.  A.  007,  50 

Fed.    674 17 

Prewit  v.  Wilson,  103  U.  S.  22 158 

Price  v.  Corp.  of  Penzance,  4  Hare,  506,  509 268 

v.  Junkin,  4  Watts,  85 105 

v.  McDonald,  1  Md.  414 92 

v.  Thompson,  84  Ky.  219,  1  S.  W.  408 147 


406  CASES    CITED. 

Page 

Price's  Ex'r  v.  Price's  Ex'rs,  23  N.  J.  Eq.  428 333 

Prince  Albert  v.  Strange,  1  Macn.  &  G.  42 308 

Prince  Manuf* g  Co.  v.  Prince's  Metallic  Paint  Co.,  135  N.  Y.  24,  31  N.  E. 

990     40 

Pringle  v.  Dunn,  37  Wis.  449,  464 87,  89,  90 

Printing  &  Numerical  R.  Co.  v.  Sampson,  L.  R.  19  Eq.  402 242 

Prosser  v.  Rice,  28  Beav.  08,  74 84 

Protestant  Episcopal  E.  Soc.  v.  Churchman,  80  Va.  718 187,  191 

Prout  v.  Roberts,  32  Ala.  427 138 

Providence  Bank  v.  Wilkinson,  4  R.  I.  507 326 

Prudential  Assur.  Co.  v.  Knott,  10  Ch.  App.  142 310 

Puckette  v.  Judge,  39  La.  Ann.  901,  2  South.  801 290 

Pugh  v.  Wheeler,  2  Dew  &  B.  55 305 

Pulteney  v.  Shelton,  5  Ves.  260 299 

Purple  v.  Hudson  River  R.  Co.,  4  Duer,  74 240 

Pusey  v.  Desbouvrie,  3  P.  Wms.  315,  321 56,  120 

v.  Pusey,  1  Vern.  273,  1  White  &  T.  Lead.  Cas.  Eq.  1109 266 

Putnam  v.  Ritchie,  6  Paige  (N.  Y.)  390,  404 230 

Pye,  Ex  parte,  18  Ves.  140,  150,  2  White  &  T.  Lead.  Cas.  Eq.  368.  .62,  64,  177 

Pym  v.  Blackburn,  3  Ves.  34,  38 115 

v.  Bowreman,  3  Swanst.  241 224 

v.  Lockyer,  5  Milne  &  C.  29 64 


Q 

Quarrell  v.  Beckford,  1  Madd.  269,  282 207 

Quartz  Hill  Con.  G.  Min.  Co.  v.  Beall,  20  Ch.  Div.  501 310 

Quin  v.  Moore,  15  N.  Y.  432 240 


R 

Rabb  v.  Flenniken,  29  S.  C.  278,  7  S.  E.  597 103 

Ragsdale  v.  Mays,  65  Tex.  255 277 

Railroad  Co.  v.  Dubois,  12  Wall.  47 50 

v.  Soutter,  13  Wall.  517,  524 119 

Ralston  v.  Turpin.  129  U.  S.  675,  9  Sup.  Ct.  420 152 

Ramsay  v.  Gheen,  99  N.  C.  215,  6  S.  E.  75 274 

Ramsdell  v.  Edgarton,  8  Mete.  (Mass.)  227 154 

Ramsey  v.  Hanlon,  33  Fed.  425 70 

Ramsey's  Appeal,  2  Watts  (Pa.)  228 257 

Randolph's  Ex'r  v.  Quidnick  Co.,  135  U.  S.  457,  10  Sup.  Ct.  655 275 

Ranelaugh  v.  Hayes,  1  Vern.  189 254 


CASES   CITED.  407 

Page 

Rankin  v.  Coar,  46  N.  J.  Eq.  56G,  22  Atl.  177 8 .; 

v.  Maxwell,  2  A.  K.  Marsh.  488 14 

Rannells  v.  Gerner,  80  Mo.  474 143 

Ransom  v.  Brown,  63  Tex.  188 236 

Rapier  v.  Gulf  City  Paper  Co.,  77  Ala.  126,  134 218 

Raritan  Water-Power  Co.  v.  Veghte,  21  N.  J.  Eq.  463 85 

Rau  v.  Von  Zedlitz,  132  Mass.  164 145 

Rawlins  v.  Wickham,  3  De  Gex  &  J.  304 135 

Ray  v.  Powers,  134  Mass.  22 253 

v.  Simmons,  11  R.  I.  266 178 

Rea  v.  Longstreet,  54  Ala.  291 317 

Read  v.  Huff,  40  N.  J.  Eq.  229 198 

v.  Read,  1  Ch.  Cas.  115 325 

v.  Simons'  Adm'r,  2  Desaus.  Eq.  552 229 

v.  Williams,  125  N.  Y.  560,  571,  26  N.  E.  730 76 

Reade  v.  Livingston,  3  Johns.  Ch.  (N.  Y.)  481 157 

Recknagle  v.  Schmaltz,  72  Iowa,  63,  33  N.  W.  365 282 

Redfern  v.  Bryning,  6  Ch.  Div.  133 128 

Redfield  v.  Gleason,  61  Vt.  220,  17  Atl.  1075 287 

v.  Parks,  132  U.  S.  239,  247,  248,  10  Sup.  Ct.  83 27 

Redgrave  v.  Hurd,  20  Ch.  Div.  1 136 

Redin  v.  Branhan,  43  Minn.  283,  45  N.  W.  445 246 

Reed  v.  Boardman,  20  Pick.  441 250 

v.  Breeden,  61  Pa.  St.  460 279 

v.  Marble,  10  Paige,  409 201 

v.  Norris,  2  Mylne  &  C.  361,  375 254 

v.  Reed,  12  Pa.   St.  117 282 

Rees  v.  City  of  Watertown,  19  Wall.  109,  121 2,  22 

Reese's  Appeal,  122  Pa.  St.  392,  15  Atl.  S07 267 

Reeve  v.  Whitmore,  4  De  Gex,  J.  &  S.  1,  16-18 243 

Reeves  v.  Coming,  51  Fed.  774,  780 134 

v.  Hayes,  95  Ind.  521 218 

v.  Morgan,  48  N.  J.  Eq.  420,  21  Atl.  1040 12 

Regan  Vapor-Engine  Co.  v.  Pacific  Gas-Engine  Co.,  1  C.  C.  A.  109,  49 

Fed.    68 242 

Reichert  v.  Geers,  98  Ind.  73 303 

Reid's  Adm'r  v.  Blackstone,  14  Grat.  363 174 

Renals  v.  Cowlishaw,  9  Ch.  Div.  130,  11  Ch.  Div.  866 295 

Rendell  v.  Scott,  70  Cal.  514,  11  Pac.  779 135 

Rensselaer  &  S.  R.  Co.  v.  Miller,  47  Vt.  146 207 

Renton  v.  Monnier,  77  Cal.  449,  19  Pac.  820 244 

Revalk  v.  Kraemer,  8  Cal.  66 294 

Revell  v.  Hussey,  2  Ball  &  B.  287 26 

Reynell  v.  Sprye,  1  De  Gex,  M.  &    G.  660,  679 42 


408  CASES    CITED. 

Page 

Reynolds,  Ex  parte,  5  Ves.  707 211 

v.  Crldge,  L31  Pa.  St.  189,  18  Atl.  1010 207 

v.  Horine,   13  B.   Mon.  234 294 

y.  Kingsbury,   15  Iowa,  238 90 

v.  Palmer,  21  Fed.  433 135 

v.  Robinson,  82  N.  Y.  103 59 

v.  Sumner,  12G  111.  58,  18  N.  E.  334 43 

Rhead  v.  Hounson,  4G  Mich.  243,  9  N.  W.  207 100 

Rhodes  v.  Bate.  1  Ch.  App.  232 152 

v.  Dunbar,  57  Pa.  St.  274 303 

v.  Outcalt,  48  Mo.  370 82 

Rice  v.  Hale,  5  Cush.  241 325 

v.  Rice,  2  Drew.  73 3G 

v.  Sanders.  ir>2  Mass.  108.  24  N.  E.  1079 219 

v.  Southgate,  16  Gray,  142 254 

v.  Stone,  1  Allen  (Mass.)  560 240 

Rich  v.  Bray,  37  Fed.  273 261 

Richards  v.  Columbia,  55  N.  H.  96 251 

v.  Delbridge,  L.  R.  18  Eq.  11,  13 176,  178 

v.  Dower,  61  Cal.  62,  28  Pac.  113 301 

v.  Humphreys,  15  Pick.  133,  136 62,  64 

v.  Lumber  Co.,  74  Mich.  57,  41  N.  W.  860 233 

v.  Seal,  2  Del.  Cb.  266 205 

Richardson  v.  Greese,  3  Atk.  65 60 

v.  Jenkins,  1  Drew.  477 210 

v.  Levi,  67  Tex.  359,  3  S.  W.  444 98 

v.  Walton,   49   Fed.   888 140 

v.  Woehler,  26  Mich.  90 110 

Richart  v.  Richart,  30  Iowa,  465 57 

Richmond  Manuf'g  Co.  v.  Atlantic  De  Laine  Co.,  10  R.  I.  100 305 

Rico  v.  Gaultier,  3  Atk.  500 325 

Riddlesburg  Coal  &  Iron  Co.,  Appeal  of,  114  Pa.  St.  58,  6  Atl.  381 243 

Rider  v.  Johnson,  20  Pa.  St.  190 245 

v.  Kidder,   10  Ves.  360 195 

Ridgway  v.  Newstead,  2  Giff.  492 43 

v.  Ridgway,  69  Md.  242,  14  AtL  659 275 

Riegel  v.  American  Life  Ins.  Co.,  153  Pa.  St.  134,  25  Atl.  1070 124 

Rigden  v.  Vallier,  3  Atk.  735 195 

Riggs  v.  Palmer,  115  N.  Y.  506,  22  N.  E.  188 39 

Ringgold  v.  Bryan,  3  Md.  Ch.  488 232 

Riopelle  v.  Doellmer,  20  Mich.  105 320 

Ripley  v.  Waterworth,  7  Ves.  435 77 

Ripon  v.  Hobart,  2  Mylne  &  K.  169,  174,  176 298 

Rippe  v.  Stogdill,  61  Wis.  38,  20  N.  W.  645 249 


CASES   CITED.  409 

Page 

Rlst  v.  Hartner,  44  La.  430,  10  South.  759 150 

Ritter  v.  Phillips,  53  N.  Y.  586 220 

Roane  v.  Baker,  120  111.  308,  11  N.  E.  246 101 

Robbins  v.  Davis,  1  Blatchf.  238,  Fed.  Cas.  No.  11.8S0 322 

v.  Potter,   98  Mass.   532 48 

Robert  v.  Corning,  89  N.  Y.  225,  239 71 

Roberts  v.  Bourne,  23  Me.  165 91 

v.  Richards,  84  Me.  1,  24  Atl.  425 91 

v.  Stevens,  84  Me.  325,  24  Atl.  873 181 

Roberts'  Heirs  v.  Lovejoy,  60  Tex.  253,  257 286 

Robertson  v.  Deatherage,  82  111.  511 252 

Robinson  v.  Appleton,  124  111.  276,  15  N.  E.  761 236 

v.  Cathcart,  2  Cranch,  C.  C.  590,  Fed.  Cas.  No.  11,946 36 

v.  Mclver,  63  N.  C.  645 237 

v.  Mauldin,  11  Ala.  977 172 

v.  Pett,  3  P.  Wins.  249,  2  White  &  T.  Lead.  Cas.  Eq.  512 146,  206 

v.  Robinson,  1  De  Gex,  M.  &  G.  247 210 

Rochester  v.  Levering,  104  Ind.  562,  4  N.  E.  203 148 

Rock  Island  &  P.  Ry.  Co.  v.  Dimick,  144  111.  628,  32  N.  E.  291 84 

Rockwell  v.  Bank,  31  Neb.  128,  47  N.  W.  641 220 

v.  Hobby,  2  Sandf.   Ch.  9 229 

Roddy  v.  Brick,  42  N.  J.  Eq.  218,  6  Atl.  S06 218 

Roe  v.  Roe,  21  N.  J.  Eq.  253 51 

Roemer  v.  Conlon,  45  N.  J.  Eq.  234,  19  Atl.  664 128 

Rogers  v.  Challis,  27  Beav.  175 270 

v.  Hussey,  36  Iowa,   664 85 

v.  Ingham,  3  Ch.  Div.  351,  356,  357 119 

v.  Jones,  3  Ch.  Div.  688;    8  N.  H.  264 51,  85 

v.  Saunders,  16  Me.  92 129,  273 

v.  Soutten,  2  Keen,  598 64 

v.  Taintor,  97  Mass.   291 309 

v.  Torbut,   58  Ala.   523 37 

v.  Wolfe,  104  Mo.  1,  14  S.  W.  805 281 

v.  Yarnell,  51  Ark.  198,  10  S.  W.  622 249 

Rogers  Locomotive  &  M.  Works  v.  Erie  R.  Co.,  20  N.  J.  Eq.  379 288 

Rohan  v.  Hanson,  11  Cush.  (Mass.)  44 251 

Rohn  v.  Harris,  130  111.  525,  22  N.  E.  587 263 

Rolfe  v.  Gregory,  4  De  Gex,  J.  &  S.  576,  579 199,  208 

v.  Peterson,  2  Brown,  Pari.  Cas.  (Tomlins'  Ed.)  436 110 

Roll  v.  Rea,  50  N.  J.  Law,  264,  12  Atl.  905 87 

Rolland  v.  Hart.  6  Ch.  App.  678 92 

Romaine  v.  Hendrickson,  27  N.  J.  Eq.  162 146 

Rooke's  Case,  5  Coke,  99b 34 

Rooney  v.  Michael,  84  Ala.  585,  4  South.  421 12 


410  CASES    CITED. 

Page 

Root  v.  Railway  Co.,  105  U.  S.  ISO 307 

Ropes  v.  Upton,   125  Mass.  258 205 

Roquet  v.  Eldridge,  118  Ind.  147,  20  N.  B.  733 63 

Rorer  Iron  Co.  v.  Trout,  83  Va.  307,  2  S.  E.  713 135 

Roseman  v.  Miller,  S4  111.  207 95 

Rosewell  v.  Bennett,  3  Atk.  78 63 

Ross  v.  Brnsie.  70  Cal.  465,  11  Pac.  760 216 

v.  Conway,  02  Cal.  632,  28  Pac.  785 151,  153 

v.  Crane,  74  Iowa,  375,  37  N.  W.  050 250 

v.  Parks.  03  Ala.  153,  8  South.  368 273 

v.  Purse,  17  Colo.  24,  28  Pac.  473 277 

v.  Union  Pac.  Ry.  Co.,  Woolw.  26,  40,  Fed.  Cas.  No.  12,080 207,  2GS 

Rossiter  v.  Miller,  3  App.  Cas.  1124 272 

Roszell  v.  Roszell,  100  Ind.  354,  10  N.  E.  114 128 

Rothholz  v.  Schwartz,  4G  N.  J.  Eq.  477,  10  Atl.  312 270 

Rothschild  v.  Kohn  (Ky.)  10  S.  W.  780 04 

Rottenburgh  v.  Fowl  (N.  J.  Ch.)  26  Atl.  338 145 

Rouse  v.  Flowers,  75  Ala.  513 302 

Rousillon  v.  Rousillon,  14  Ch.  Div.  351 206 

Row  v.  Dawson,  1  Ves.  Sr.  331,  332,  2  White  &  T.  Lead.  Oas.  Eq.  731 .  . 

172,  243 

Rowley  v.   Bigelow,   12  Pick.  307 105 

v.  Towsley,  53  Mich.  320,  10  N.  W.  20 210,  256 

Roxborough  v.  Messick,  6  Ohio  St.  448 05 

Rozell  v.  Redding,  50  Mich.  331,  26  N.  W.  408 40 

Ruff's  Appeal,  117  Pa.  St.  310 276 

Runyan  v.  Mersereau,  11  Johns.  534 218 

Runyon  v.  Farmers'  &  M.  Bank,  4  N.  J.  Eq.  480 330 

Rushton  v.  Thompson,  35  Fed.  635 272 

Rushworth  v.  Moore,  30  N.  H.  188 255 

Russ  v.  Mebius,  16  Cal.  350 102 

Russel  v.  Russel,  1  Brown,  Ch.  260,  1  White  &  T.  Lead.  Cas.  Eq.  031 220 

Russell  v.  Allen,  107  U.  S.  167,  2  Sup.  Ct.  327 188 

v.  Clark,  7  Cranch,  60 14 

v.  Dickeschied,  24  W.  Va.  61 320 

v.  Failor,  1  Ohio  St.  327 32 

v.  Kirkbride,  62  Tex.  450 04 

v.  Presbyterian  Church,  65  Pa.   St.  0 130 

v.  Southard,  12  How.  130 24 

Russell's  Patent,  2  De  Gex  &  J.  130 172 

Rust  v.  Conrad,  47  Mich.  440,  11  N.  W.  205 273 

Ruth  v.  Oberbrunner,  40  Wis.  238 100 

Rutherford  v.  Stewart,  70  Mo.  216 242 

Rutland  Marble  Co.  v.  Ripley,  10  Wall.  330 312 


CASES    CITED.  411 

Page 

Ryall  v.  Ryall,  1  Atk.  59 196 

Ryan  v.  Ashton,  42  Iowa,  365 149 

v.  Doyle,  31  Iowa,  53 20S 

Rynearson  v.  Turner,  52  Mich.  7,  17  N.  W.  219 253 

S 

Sable  v.  Maloney,  48  Wis.  331,  4  N.  W.  479 315 

Safford  v.  Rantoul,  12  Pick.  233 173 

Sage  v.  Memphis  &  L.  R.  R.  Co.,  125  U.  S.  361,  8  Sup.  Ct.  S87 331 

Sailly  v.  Elmore,  2  Paige,  497,  499 12 

Sadnter  v.  Ferguson,  7  C.  B.  730 110 

St  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  642 303 

St.  Louis  Nat.  Stock  Yards  v.  Wiggins  Ferry  Co.,  102  111.  514 46 

Sale  v.  Moore,  1  Sim.  534 172 

Salisbury  v.  Clarke,  61  Vt.  453,  17  Atl.  135 192 

Salt  v.  Pym,  28  Ch.  Div.  155 128 

Saltmarsh  v.  Beene,  4  Port  (Ala.)  283 274 

Sample  v.  Barnes,  14  How.  70 40 

Sanders  v.  Cassady,  86  Ala.  246,  248,  5  South.  503 218 

v.  Logan,  2  Fish.  Pat  Cas.  167,  Fed.  Cas.  No.  12,295 307 

v.  Metcalf,  1  Tenn.  Ch.  419 21,  291 

Sanderson  v.  Price,  21  N.  J.  Law,  637,  646 216 

Sandford  v.  Handy,  23  Wend.  260 135 

v.  McLean,  3  Paige,   117 256 

v.  Weeden,  2  Heisk.  71 196 

Sanfley  v.  Jackson,  16  Tex.  579 152 

Sangster  v.  Love,  11  Iowa,  580 218 

Sappington  v.  Oeschli,  49  Mo.  244 100 

Sargeant  v.  Rowsey,  89  Mo.  617,  1  S.  W.  823 225 

Satterfield  v.  Malone,  35  Fed.  445 83 

v.  Rowan,  83  Ga.  187,  9  S.  B.  677 305 

Saull  v.  Browne,  10  Ch.  App.  64 9 

Saunders  v.  Smith,  3  Mylne  &  C.  714,  728 298 

v.  Wiel  [1892]  2  Q.  B.  321 321 

Saur  v.  Ferris,  145  111.  115,  34  N.  E.  52 15 

Savage  v.  Burnham,  17  N.  Y.  561,  569 71 

v.  Savage,  19  Or.  112,  23  Pac.  890 261 

Savannah  Nat.  Bank  v.  Haskins,  101  Mass.  370 116 

Sawyer,  In  re,  124  U.  S.  210,  8  Sup.  Ct.  482 9 

v.  Almand,  89  Ga.  314,  15  S.  E.  315 105 

Sayre  v.  Hughes,  L.  R.  5  Eq.  376 197 

Scanlan  v.  Cobb,  85  111.  296 143 

Scarborough  v.  Watkins,  9  B.  Mon.  540 153 


412  CASES    CITED. 

Page 

Schafer  v.  Reilly,  50  N.  Y.  61 240 

Schaps  v.  Lehner,  54  Minn.  208,  55  N.  W.  911 143 

Schettler  v.  Smith,  -41  N.  Y.  329 181 

Schleissmann  v.  Kallenberg,  72  Iowa,  338 255 

Schlessinger  v.  Mallard,  70  Cal.  326,  11  Pac.  728 193 

Schloss  v.  Hewlett,  81  Ala.  266,  1  South.  263 241 

Schneider  v.  Williams,  44  N.  J.  Eq.  391,  14  Atl.  812 309 

Schofield  v.  Heap,  27  Beav.  93 64 

School  Dist  No.  1  v.  Weston,  31  Mich.  85 326,  328 

Schouler,  In  re,  134  Mass.  426 188 

Schreiber  v.  Carey,  48  Wis.  208,  4  N.  W.  124 333 

Schriber  v.  Le  Clair,  66  Wis.  579,  29  N.  W.  570,  889 217 

Schroeder  v.  Gurney,  73  N.  Y.  430 100 

v.  Loeber,  75  Md.  195,  23  AtL  579,  and  24  Atl.  226 12 

v.  Walsh.  120  111.  403,  11  N.  E.  70 158 

Schuey  v.  Schaeffer,  130  Pa,  St.  18,  18  Atl.  544 2S1 

Schuster  v.  Schuster,  93  Mo.  438,  6  S.  W.  259 197 

Schuyler  v.  Curtis,  64  Hun,  594,  19  N.  Y.  Supp.  264 311 

Scotland  Co.  v.  Hill,  132  U.  S.  107,  10  Sup.  Ot.  26 9S 

Scott  v.  Austin,  36  Minn.  460,  32  N.  W.  89,  864 37 

v.  Freeland,  7  Smedes  &  M.  409 147 

v.  Gallagher,  14  Serg.  &  R.  333,  334 86 

v.  Magloughlin,  133  111.  33,  24  N.  E.  1030 246 

v.  Porcher,  3  Mer.  652 244 

v.  Rayment,  L.  R.  7  Eq.  112 269 

v.  Rogers,  77  Iowa,  483,  42  N.  W.  377 93 

v.  Sierra  Lumber  Co.,  67  Cal.  71,  7  Pac.  131 147 

Scranton  Electric  Light  &  Heat  Co.  v.   Scranton  Illuminating  Heat  & 

Power  Co.,  122  Pa,  St.  154,  15  Atl.  446 40 

Scudamore  v.  Scudamore,  Finch,  Prec.  543 68,  72 

Sears  v.  Starbird,  78  Cal.  225,  20  Pac.  547 253 

Sebastian  v.  Johnson,  72  111.  282 203 

Second  Religious  Soc.  v.  Harriman,  125  Mass.  321 188 

Secor  v.  Toledo,  P.  &  W.  R.  Co.,  7  Biss.  513,  Fed.  Cas.  No.  12,605 330 

Seda  v.  Huble,  75  Iowa,  429,  39  N.  W.  685 190 

Seeley  v.  Fisher,  11  Sim.  581,  583 310 

v.  Jago,    1    P.   Wms.    389 79 

Seiberling  v.  Tipton  (Mo.  Sup.)  21  S.  W.  4 87 

Seixas  v.  Gonsoulin,  40  La.  Ann.  351,  4  South.  453 255 

Selby  v.  Stanley,  4  Minn.  65  (Gil.  34) 233 

Seligmann  v.  Le  Boutillier,  L.  R.  1  C.  P.  6S1 269 

Sellers  v.  Parvis  &  Williams  Co.,  30  Fed.  164 302 

Sellors  v.  Local  Board  of  Health,    14  Q.  B.  Div.  928 303 

Seltz  v.  Unna,  6  Wall.  327 253 


CASES    CITED.  413 

Pag? 

Seton  v.  Lafone,  19  Q.  B.  Div.  68,  70 47 

v.   Slade,  7  Ves.  2G5,   273 212,  278 

Sewell  v.  Price,  32  Ala.  97 . 217 

Seymour  v.  Ricketts,  21  Neb.  240,  31  N.  W.  7S1 261 

v.  Wilson,  19  N.  Y.  417,  420 158 

Shackelford  v.  Bankhead,  72  Ala.  476 13 

Shackelton   v.    Sebree,   86   111.    616 145 

Shaftoe  v.  Shaftoe,  7  Ves.  171 325 

Shakeshaft,  Ex  parte,  3  Brown,  Ch.  197 210 

Shakespeare   v.  Alba,   76  Ala.   351 283 

Shand  v.  Du  Buisson,  L.  R.  18  Bq.  283 243 

Shankland's  Appeal,  47  Pa.  St.  113 180 

Shannon  v.  Bruner,  36  Fed.  147 241 

Shardlow  v.  Cotterell,  20  Ch.  Div.  90 277 

Sharon   v.   Terry,  36  Fed.   337 • 316 

Sharp  v.  Taylor,  2  Phil.   Ch.  S01 41 

Shartel's   Appeal,   64  Pa.   St.   25 210 

Shattuck  v.  Bascom,  105  N.  Y.  40,  12  N.  E.  283 215 

Shaw  v.  Beers,  84  Ind.  528 260 

v.  Coster,  8  Paige  (N.   Y.)   339 329 

v.  Fisher,  2  De  Gex  &  S.  11 267 

v.  Foster,  L.   R.  5  H.  L.  321 236 

v.  Shaw,   86    Mo.    594 196 

v.  Spencer,   100   Mass.   382,   3S8 192 

Shea  v.  Shea,  121  Pa.  St.  302,  15  Atl.  629 151 

Sheerer  v.  Cuddy,  85  Cal.  270,  24  Pac.  713 85 

Sheffield  Waterworks  v.  Yeomans,  2  Ch.  App.  8 17 

Sheldon  v.  Rockwell,  9  Wis.  166,  179 18 

Shellenberger  v.  Ranson  (Neb.)  59  N.  W.  935 39 

Shelley's  Case,  L.  R.  4  H.  L.  545,  553 183 

Shepherd  v.  Burkhalter,  13  Ga.  443 90 

Sherman  v.  Lewis,  44  Minn.  107,  46  N.  W.  31S 53 

Sherwood  v.  Walker,  66  Mich.  56S,  33  N.  W.  919 125 

Shields  v.  Lozear,  34  N.  J.  Law,  496 216 

Shiell  v.  McNitt,  9  Paige,  101,  106 109 

Shillaber  v.  Robinson,  97  U.  S.  68 222 

Shipley  v.  Fox,  69  Md.  572,  579,  16  Atl.  275 46 

Shoemaker  v.  South  Bend  Spark  Arrester  Co.,  135  Ind.  471,  35  N.  E.  380...  311 

Shryock  v.  Waggoner,  28  Pa.  St.  431 171 

Shultz  v.  Johnson,  5  B.  Mon.  497 240 

Shurtleff  v.  Rile,  140  Mass.  213,  4  N.  E.  407 202 

Shuttleworth  v.  Greaves,  4  Mylne  &  C.  35 53 

Sibley  v.  Baker,  23  Mich.  312 257 

Sichel  v.  Mosenthal,  30  Beav.  371 270 


414  CASES    CITED. 

Pago 
Sickles  v.  Gloucester  Manuf  g  Co.,  1  Fish.  Pat  Cas.  222,  Fed.  Cas.  No.  12,- 

841    307 

Sidmouth  v.  Sidmouth,  2  Beav.  447,  450 198 

Silva  v.  Garcia,  05  Cal.  591,  4  Pac.  028 300 

v.  Rankin,  SO  Ga.  79,  4  S.  E.  750 301 

Sim  v.  Field,  00  Mo.  Ill 223 

Siminonds,  Ex  parte,  10  Q.  B.  Div.  308 119 

Simmons,  In  re,  55  Ark.  485,  18  S.  W.  933 73 

Simmons  Creek  Coal  Co.  v.  Doran,  142  U.  S.  417,  12  Sup.  Ct.  239 84,  87 

Simons  v.  Vulcan  Oil  &  Min.  Co.,  01  Pa.  St.  202 151 

Simpson  v.  Howden,  3  Mylne  &  C.  97 310 

v.  Mundee,  3  Kan.  172 233 

Sims  v.  Albea,  72  Ga.  751 257 

v.  Sims,  10  N.  J.  Eq.  158,  102,  103 59 

Singer  Manuf  g  Co.  v.  Domestic  S.  M.  Co.,  49  Ga.  70 311 

Singer  Sewing  Mach.  Co.  v.  Union  Buttonhole  Co.,  1  Holmes,  253,  Fed. 

Cas.  No.  12,904 295 

Sitton  v.  Shipp,  05  Mo.  297 281 

Skellenger's  Ex'rs  v.  Skellenger's  Ex'r,  32  N.  J.  Eq.  059 193 

Skerrett  v.  Presbyterian  Society,  41  Onio  St.  000 90 

Skiles'  Appeal,  110  Pa.  St.  248,  20  Atl.  722 230 

Skinners'  Co.  v.  Irish  Soc,  1  Mylne  &  C.  104 331 

Skip  v.  Harwood,  3  Atk.  504 331 

Skrine  v.  Jackson,  73  Ga.  377 21 

Slemmer's  Appeal,  58  Pa.  St.  155 307 

Slingsby  v.  Boulton,  1  Ves.  &  B.  334 329 

Sloan  v.  Campbell,  71  Mo.  387 234 

Sloane  v.  Cadogan,  Sugd.  Vend.  Append 179 

Sloman  v.  Walter,  1  Brown,  Ch.  418,  2  White  &  T.  Lead.  Cas.  Eq.  1094, 

2022    24,  107 

Smail  v.  Sanders,  118  Ind.  105,  20  N.  E.  290 310 

Small  v.  Minneapolis  Electric  Matrix  Co.,  45  Minn.  204,  207,  47  N.  W.  797  313 

Smethurst  v.  Hastings,  30  Ch.  Div.  490,  49S 202 

Smith  v.  Boston,  C.  &  M.  R.  Co.,  30  N.  H.  487 209 

v.  Bricker,  80  Iowa,  285,  53  N.  W.  250 130 

v.  Burgess,  133  Mass.  513 87 

v.  Cansler,  83  Ky.  307 274 

v.  Chadwick,  9  App.  Cas.  187 137 

v.  City  of  Oconomowoc,  49  Wis.  094,  0  N.  W.  329 < 300 

v.  Claxton,  4  Madd.  402 77 

v.  Clay,  3  Brown,  Ch.  040 37,  275 

v.  Crosby,  47  Wis.  100,  2  N.  W.  104 217 

v.  Dunn,  27  Ala.  310 203 

v.  East  India  Co.,  1  Phil.  Ch.  50 321 


CASES   CITED.  415 

Pago 

Smith  v.  Fellows,  131  Mass.  20 237 

v.  Hughes,  L.  R.  6  Q.  B.  597 125 

v.  Kanimerer,  152  Pa.  St.  98,  25  Atl.  165 40 

v.  Kay,  7  H.  L.  Cas.  750,  755,  772 136,  152 

v.  Kelley,  27  Me.  237 218 

v.  Lawrence,  15  Mich.  499 279 

v.  Lehman,  Durr  &  Co.,  85  Ala.  394,  5  South.  204 97 

v.  Leveaux,  2  De  Gex,  J.  &  S.  1 249 

v.  Loewenstein,  50  Ohio  St.  346,  34  N.  E.  159,  161 71 

v.  Loyd,  11  Leigh,  512 251 

v.  Matthews,  3  De  Gex,  F.  &  J.  139 173 

v.  Reid,  134  N.  Y.  568,  31  N.  E.  1082 85 

v.  Richards,  13  Pet.  26,  36 135 

v.  Rumsey,  33  Mich.  183 255 

v.  Sherman,  4  Cush.  408 240 

v.  Smith,  4  Rand.  (Va.)  102;   10  Paige,  477;  2  Younge  &  C.  Exch.  361 

263,  333 

v.  Vodges,  92  U.  S.  183 157 

v.  Walser,  49  Mo.  250 208 

Smyley  v.  Reese,  53  Ala.  89 153 

Smyth  v.  Burns,  25  Miss.  422 204 

v.  Griffin,  13  Sim.  245 316 

v.  New  Orleans  Canal  &  Banking  Co.,  141  U.  S.  656,  12  Sup.  Ct.  113. .     10 

Snell  v.  Dwight,  120  Mass.  9 41 

v.  Insurance  Co.,  98  U.  S.  85,  90,  92 120 

Snodgrass  v.  Andrews,  30  Miss.  472 156 

v.  Butler,  54  Miss.  45 329 

Snook  v.  Snetzer,  25  Ohio  St.  516 30 

Snowdon  v.  Dales,  6  Sim.  524 180 

Snyder  v.  Cabell,  29  W.  Va.  48,  1  S.  E.  241 304 

v.  Partridge,  138  111.  173,  29  N.  E.  851 89 

v.  Robinson,  35  Ind.  311 219 

Soberanes  v.  Soberanes,  97  Cal.  140,  31  Pac.  910 152,  153 

Sohier  v.  Burr,  127  Mass.  221 18S 

v.  Eldredge,  103  Mass.  345,  351 231 

v.  Trinity  Church,  109  Mass.  1 174 

Solinger  v.  Earle,  82  N.  Y.  395 155 

Soltau  v.  De  Held,  2  Sim.  (N.  S.)  133,  141,  142 301,  302,  304 

Somers  v.  Overhulser,  67  Cal.  237,  7  Pac.  645 195 

Somes  v.  Brewer,  2  Pick.  183 98 

Sorrell  v.  Carpenter,  2  P.  Wms.  482 93 

Soule  v.  Shotwell,  52  Miss.  236 96 

Southard  v.  Benner,  72  N.  Y.  426 156 

Southern  California  R.  Co.  v.  Rutherford,  62  Fed.  796 22 


41G  CASES    CITED. 

Page 

Southern  Development  Co.  v.  Silva,  125  U.  S.  247,  8  Sup.  Ot.  881 134,  137 

South  &  N.  A.  R.  Co.  v.  Highland  Ave.  &  B.  R.  Co.,  98  Ala.  400,  13  South. 

6S2    269 

Soutter  v.  Miller,  15  Fla.  G25 186 

Soward  v.  Johnston,  65  Mo.  102 47 

Sowles  v.  Hall,  62  Vt.  247,  20  Atl.  810 279 

Spain  v.  Hamilton,  1  Wall.  604,  624 245 

Sparhawk  v.  Cloon,  125  Mass.  263 180 

v.  Railway  Co.,  54  Pa.  St.  401 ' 8 

Sparrow  v.  Oxford,  W.  &  W.  R.  Co.,  9  Hare,  436,  441 298 

v.  Paris,  8  Jur.  (N.  S.)  391 110 

Spaulding  v.  Oakes,  42  Vt.  343 253 

v.  Warner,  59  Vt.  646,  11  Atl.  1S6 263 

Speck  v.  Riggin,  40  Mo.  405 81 

Speight  v.  Gaunt,  9  App.  Cas.  1 203 

Spence  v.  Mobile  &  M.  R.  Co.,  79  Ala.  576 246 

Spencer  &  Newbold's  Appeal,  SO  Pa.  St.  317 147 

Spielmann  v.  Kliest,  36  N.  J.  Eq.  202 90 

Spink  v.  Francis,  19  Fed.  670,  20  Fed.  567 9 

Spong  v.  Spong,  3  Bligh  (N.  S.)  84 237 

Sprague  v.  Rooney,  104  Mo.  349,  16  S.  W.  505 272 

v.  West,   127  Mass.   471 328 

v.  Woods,  4  Watts  &  S.  192 194 

Springfield  &  M.  R.  Co.  v.  Stewart,  51  Ark.  2S5,  10  S.  W.  767 232,  235 

Spurgiu  v.  Adamson,  62  Iowa,  661,  18  N.  W.  293 224 

Stagg  v.  Jackson,  1  N.  Y.  206 69 

Stairley  v.  Rabe,  McMul.  Eq.  (S.  C.)  22 333 

Standard  Paint  Co.  v.  Reynolds,  43  Fed.  304 307 

Standard  Paper  Co.  v.  Guenther,  67  Wis.  106,  30  N.  W.  29S 48 

Stanley  v.  Colt,  5  Wall.  119 174 

Staples  v.  White,  Handley  &  Co.,  88  Tenn.  30,  12  S.  W.  339 91 

Starkey  v.  Starkey  (Ind.  Sup.)  36  N.  E.  287 281 

Starry  v.  Korab,  65  Iowa,  267,  21  N.  W.  600 47 

State  v.  Bank  of  Maryland,  6  Gill  &  J.  205 170 

v.  Goodnight,  70  Tex.  686,  11  S.  W.  119 302 

v.  Hall,  70  Miss.  678,  13  South.  39 14,  111 

v.  McBride,  76  Ala.  51 Ill 

v.  Paup,  13  Ark.  129 119 

v.  Piatt,  4  Har.  (Del.)  154 206 

v.  Police  Jury,  41  La.  Ann.  850,  0  South.  777 21 

v.  Saunders,  66  N.  H.  39,  25  Atl.  588 9 

v.  Schweickardt,  109  Mo.  496,  19  S.  W.  47 8 

v.  Simmons  Hardware  Co.,  109  Mo.  118,  18  S.  W.  1125 321 

v.  Standard  Oil  Co.,  49  Ohio  St.  137,  30  N.  E.  279 25 


CASES    CITED.  417 

Page 

State  v.  Ueland,  30  Minn.  277,  5  N.  W.  245 57 

v.  Unrig,  14  Mo.  App.  413 8 

v.  Wertzell,  62  Wis.  1S8,  22  N.  W.  150 47 

State  Bank  v.  Frame,  112  Mo.  502,  20  S.  W.  620 96 

Stead  v.  Newdigate,  2  Mer.  521 72 

Stebbins  v.  Palmer,  1  Pick.  71 240 

Steed  v.  Preece,  L.  R.  18  Eq.  192 73 

Steedman  v.  Weeks,  2  Strob.  Eq.  145 262 

Steel  v.  Dixon,  17  Ch.  Div.  825 253 

v.  St  Louis  Smelting  &  Refining  Co.,  106  U.  S.  447,  1  Sup.  Gt.  389. . .     48 

Steele  v.  U.  S.,  113  U.  S.  128,  5  Sup.  Ct.  396 44 

Steere  v.  Steere,  5  Johns.  Ch.  1 173 

Stein  v.  Goddard,  1  McAll.  (U.  S.)  82,  Fed.  Cas.  No.  13,353 306 

Steinau  v.  Gas  Co.,  48  Ohio  St  324,  27  N.  E.  545,  547 295 

Stephens  v.  Cady,  14  How.  530 307 

Sternberger  v.  McGovern,  56  N.  Y.  12,  20 286 

Sternburg  v.  Bowman,  103  Mass.  325 154 

Stevens  v.  Church,  41  Conn.  369 219 

v.  Dennett  51  N.  H.  333,  334 47 

v.  Flower,  46  N.  J.  Eq.  340,  19  Atl.  777 237 

v.  Hulin,  53  Mich.  93,  IS  N.  W.  569 8G 

v.  Ludlum,  46  Minn.  160,  48  N.  W.  771 48 

Stevenson  v.  Polk,  71  Iowa,  278,  32  N.  W.  340 278 

Stewart  v.  Fellows,  128  111.  480,  20  N.  E.  657 208 

v.  Houston,  &  T.  C.  Ry.  Co.,  62  Tex.  246 240 

v.  Keith,  12  Pa.  St.  238 250 

v.  Smith,  36  Minn.  82,  30  N.  W.  430 101 

v.  Stewart,  6  Clarke  &  F.  911,  966 119 

v.  Wood,  63  Mo.  252 236 

Stiles  v.  Stiles,  14  Mich.  72 153 

Still  v.  Ruby,  35  Pa.  St  373 171 

Stimson  v.  Helps,  9  Colo.  35,  10  Pac.  290 135 

Stinchfield  v.  Milliken,  71  Me.  567 24,  217 

Stirling  v.  Forrester,  3  Bligh,  590 252 

Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  102  Mass.  45 129 

Stockton  v.  Central  R.  Co.,  50  N.  J.  Eq.  52,  76,  24  Atl.  964,  965 23,  25 

Stoddard  v.  Hart,  23  N.  Y.  556 119 

Stone  v.  Denny,  4  Mete.  (Mass.)  151 135 

v.  Hackett,  12  Gray,  227 177 

v.  Hale,   17   Ala.   557 120 

v.  Reed,  152  Mass.  179,  25  N.  E.  49 329 

v.  Roscommon  Lumber  Co.,  59  Mich.  24,  26  N.  W.  216 305 

v.  Tyree,  30  W.  Va.  687,  5  S.  E.  878 94 

Stoner  v.  Zimmerman,  21  Pa.  St  394 70 

eq.jur. — 27 


418  CASES    CITED. 

Page 

Storer  v.  G.  W.  K.  Co.,  2  Younge  &  C.  Ch.  48 268 

Storrs  v.  Barker,  6  Johns.  Ch.  160 119 

v.  Pensacola  &  A.  R.  Co.,  29  Fla.  617,  11  South.  223 16 

v.  Wallace,  61  Mich.  437,  28  N.  W.  662 103 

Story  v.  New  York  El.  R.  Co.,  90  N.  Y.  122 306 

v.  Norwich  &  W.  R.  Co.,  24  Conn.  94 269 

Stott  v.  Milne,  25  Ch.  Div.  710 207 

Stover  v.  Mitchell,  45  111.  213 127 

Stowe  v.  Bowen,  99  Mass.  194 206 

Stowell  v.  Robinson,  3  Bing.  N.  C.  928 278 

Strathmore  v.  Bowes,  1  Ves.  Jr.  22,  1  White  &  T.  Lead.  Cas.  Eq.  605 160 

Stratton  v.  Physio-Medical  CoUege,  149  Mass.  508,  21  N.  E.  874 190 

Straus  v.  Barnett,  140  Pa.  St.  Ill,  21  Atl.  253 304 

Strauss's  Appeal,  49  Pa.  St.  353 233 

Streatfield  v.  Streattield,  cas.  t.  Talb.  176,  1  White  &  T.  Lead.  Cas.  Eq.  333 

51,  56,  57,  184 

Street  v.  Rigby,  6  Ves.  815 269 

Strickland  v.  Barber,  76  Mich.  310,  43  N.  W.  449 287 

v.  Kirk,  51  Miss.  795,  797 86 

v.  Turner,  7  Exch.  208 124 

Stringfellow  v.  Ivie,  73  Ala.  209,  214 234 

Strong  v.  Williams,  12  Mass.  390,  391 60 

Stuart  v.  Board,  S3  111.  341 9 

v.  Sears,  119  Mass.  143 130 

Stubbins  v.  Mitchell.  S2  Ky.  535 253 

Sturch  v.  Young,  5  Beav.  557 333 

Sturge  v.  Starr,  2  Mylne  &  K.  195 35 

Sturgis  v.  Champneys,  5  Mylne  &  C.  105 37 

Stuyvesant  v.  Hall,  2  Barb.  Ch.  151 91 

v.  Hone,  1  Sandf.  Ch.  419 9] 

v.  Mayor,  11  Paige  (N.  Y.)  414 268 

Suess  v.  Noble,  31  Fed.  855 9 

Suessenguth  v.  Bingenheiiner,  40  Wis.  370 135 

Suisse  v.  Lord  Lowther,  2  Hare,  424,  434,  435 62,  65 

Sullivan  v.  Bruhling,  66  Wis.  472,  29  N.  W.  211 185 

v.  Latimer,  38  S.  C.  158,  17  S.  E.  701 61 

v.  Royer,  72  Cal.  248,  13  Pac.  655 303 

v.  Sullivan,  66  N.  Y.  37 261 

Surcome  v.  Pinniger,  3  De  Gex,  M.  &  G.  571 283 

Sutherland  v.  Brush,  7  Johns.  Ch.  17 205 

Sutton  v.  Morgan,  158  Pa.  St.  204,  27  Atl.  894 136 

Swain  v.  Knapp,  32  Minn.  431,  21  N.  W.  414 263 

v.  Wall,  1  Ch.  R.  80 253 

Swaine  v.  Perine,  5  Johns.  Ch.  482 161,  262 


CASES   CITED.  419 

Page 

Swan  v.  Burlington,  C.  R.  &  N.  Ry.  Co.,  72  Iowa,  650,  34  N.  W.  457 84 

Swayze  v.  Carter,  41  N.  J.  Eq.  231,  233,  3  Atl.  706 47 

Sweatt  v.  Faville,  23  Iowa,  321 21 

Sweetapple  v.  Bindon,  2  Vera.  536 72,  184 

Sweetzer  v.  Jones,  35  Vt.  317 210 

Switzer  v.  Noffsinger,  82  Va.  518,  521 241 

Sydnor  v.  Roberts,  13  Tex.  508 105 

Sykes  v.  Beadon,  11  Ch.  Div.  170,  193,  194 41 

v.  Betts,  87  Ala.  537,  6  South.  428 236 

Sylvester  v.  Born,  132  Pa.  St.  467,  19  Atl.  337 27S 

v.  Jerome  (Colo.  Sup.)  34  Pac.  760 41 

Sym  v.  Howe,  L.  R.  6  Eq.  55 145 

Symes  v.  Hughes,  L.  R.  9  Eq.  475 193 

Syracuse  Sav.  Bank  v.  Holden,  105  N.  Y.  415,  11  N.  E.  950 185 


T 

Taber  v.  Hamlin,  97  Mass.  489 220 

Tabor  v.  Foy,  56  Iowa,  539,  9  N.  W.  897 246 

Tadman  v.  D'Epineuil,  20  Ch.  Div.  758 242 

Talbot  v.  Duke  of  Shrewsbury,  2  White  &  T.  Lead.  Cas.  Eq.  379 60 

Taliaferro  v.  Gay,  78  Ky.  496 214 

Talieferro  v.  Burnett,  37  Ark.  511 235 

Tallman  v.  Wood,  26  Wend.  9 184 

Tamplin  v.  James,  15  Ch.  Div.  215 126 

Tarkington  v.  Purvis,  128  Ind.  182,  25  N.  E.  879 97 

Tate  v.  Williamson,  2  Ch.  App.  55,  60,  61 146,  151 

Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  390 270 

v.  Sandiford,  7  Wheat.  13 250 

Taylor  v.  Caldwell,  3  Best  &  S.  826 115 

v.  Cartwright,  L.  R.  14  Eq.  167,  176 64 

v.  Duesterberg,  109  Ind.  165,  170,  9  N.  E.  907 160 

v.  Eckersley,  2  Ch.  Div.  302,  5  Ch.  Div.  740 270 

v.  Foster,  22  Ohio  St.  255 231 

v.  Huck,  65  Tex.  238 229 

v.  Nashville  &  C.  R.  Co.,  86  Tenn.  228,  6  S.  W.  393 294 

v.  Page,  6  Allen,  86 246 

v.  Philadelphia  &  R.  R.  Co.,  7  Fed.  385 330 

v.  Sheppard,  1  Younge  &  C.  Ex.  271 293 

v.  Stibbert,  2  Ves.  Jr.  437 85-87 

v.  Taylor,  8  How.  1S3 152 

Tazewell  v.  Smith's  Adm'r,  1  Rand.  (Va.)  313,  320 26,  70 

Teal  v.  Walker,  111  U.  S.  242,  4  Sup.  Ct.  420 216 


420  CASES    CITED. 

Pag» 

Teed  v.  Valentine,  65  N.  T.  474 157 

Tempest,  In  re,  1  Ch.  App.  487 211 

Tenant  v.  Elliott,  1  Bos.  &  P.  3 41 

Tennessee  Manuf'g  Co.  v.  James,  91  Tenn.  154,  IS  S.  W.  202 110 

Terry   v.    Terry,   Finch,    Prec.   273 204 

Terry  and  White's  Contract,  In  re,  32  Ch.  Div.  21 34 

T(  -wksbury  v.  Spruance,  75  111.  187 148 

Texas  &  P.  Ry.  Co.  v.  Kuteman,  54  Fed.  547 29 

v.  Marshall,  130  U.  S.  393,  10  Sup.  Ct.  840 11 

Thatcher  v.  Humble,  67  Ind.  444 .• 301 

Thayer  v.  Daniels,  113  Mass.  129 245 

v.  Turner,  8  Mete.  (Mass.)  550 139 

Thellusson  v.  Woodford,  4  Ves.  227;   11  Ves.  112;   13  Ves.  221 53,  181 

Theyken  v.  Howe  Mach.  Co.,  109  Pa.  St  95 24G 

Third  Ave.  R.  Co.  v.  Mayor,  etc.,  54  N.  Y.  159 18 

Third  Nat  Bank  v.  Skillings  Lumber  Co.,  132  Mass.  410 32S 

v.  Stillwater  Gas  Co.,  30  Minn.  75,  30  N.  W.  440 209 

Thomas  v.  Bartow,  48  N.  Y.  193,  198 125 

v.  Beals  (Mass.)  27  N.  E.  1004 140 

v.  Brownville,  Ft.  K.  &  P.  R.  Co.,  109  U.  S.  522,  3  Sup.  Ct.  315 150 

v.  Burnett,  12S  111.  37,  21  N.  E.  352 80 

v.  Duering,  1  Keen,  729 274 

v.  Evans,  105  N.  Y.  001,  12  N.  E.  571 230 

v.  Gyles,  2  Vera.  233 261 

v.  Sheppard,  2  McCord,  Eq.  36 144 

v.  Yonkpff,  6  Gill.  &  J.  372 27 

Thomman's  Estate,  In  re  (Pa.  Sup.)  29  Atl.  84 70 

Thompson  v.  Allen  Co.,  115  U.  S.  550,  6  Sup.  Ct.  140 23 

v.  Cartwright,  33  Beav.  178 SS 

v.  Corrie,  57  Md.    197 235 

v.  Dulles,  5  Rich.  Eq.  370 279 

v.  Marshall,  21  Or.  171,  27  Pac.  957 215 

v.  St  Nicholas  Nat.  Bank,  113  N.  Y.  325,  21  N.  E.  57 251 

v.  Stanhope,  Amb.  737 308 

v.  Thompson,  2  Strobh.  48 52 

Thomson  v.  Thomson,  7  Ves.  470;   115  Mo.  56,  21  S.  W.  1085 41,  129 

v.  Weems,  9  App.  Cas.  071 139 

Thorley's  Cattle  Food  Co.  v.  Massam,  14  Ch.  Div.  703 310 

Thorn  v.  Newsom,  04  Tex.  101 97 

v.  Sweeney,  12  Nev.  251 301 

Thorndike  v.  Hunt,  3  De  Gex  &  J.  503 35 

Thrasher  v.  Doig,  18  Fla.  809 12 

Threlfall  v.  Lunt  7  Sim.  027 310. 


CASES    CITED.  421 

Page 

Throckmorton  v.  Davidson,  68  Iowa,  643,  27  N.  W.  794 266 

Throgmorton  v.  Finch,  3  Inst.  124,  4  Inst.  86,  cited  Cro.  Jac.  344 292 

Thurston  v.  Percival,  1  Pick.  415 241 

Tawing  v.  Lumber  Co.,  40  Minn.  184,  41  N.  W.  815 124 

Thynn  v.  Thynn,  1  Vern.  296 199 

Tibbits  v.  Tibbits,  19  Ves.  663 56 

Tichenor  v.  Dodd,  4  N.  J.  Eq.  454 219 

Tidd  v.  Lister,  3  De  Gex,  M.  &  G.  857 257 

Tiernan  v.  Beam,  2  Ohio,  383 233 

v.  Roland,  15  Pa.  St.  451 57 

Tilley  v.  Thomas,  3  Ch.  App.  67 278 

Tillinghast  v.  Coggeshall,  7  R.  I.  385 184 

Tillotson  v.  Rose,  11  Mete.  (Mass.)  299 254 

Tinsley  v.  Tinsley,  52  Iowa,  14,  2  N.  W.  528 235 

Tobey  v.  McAllister,  9  Wis.  465 233 

Todd  v.  Grove,  33  Md.  194 145,  153 

v.  Moorhouse,  L.  R.  19  Eq.  69 197 

Tode  v.  Gross,  127  N.  Y.  480,  2S  N.  E.  469 110 

Toledo,  A.  A.  &  N.  M.  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  746 22 

Toll  v.  Davenport,  74  Mich.  3S6,  42  N.  W.  63 105 

Tooth  v.  Hallett,  4  Ch.  App.  242 245 

Torrance  v.  Bolton,  L.  R.  14  Eq.  124,  8  Ch.  App.  118 236 

Torrey  v.  Cameron,  73  Tex.  583,  11  S.  W.  840 195 

Toulmin  v.  Price,  5  Ves.  235,  238 12 

Tourville  v.  Naish,  3  P.  Wms.  307 96 

Toussaint  v.  Martinnant,  2  Term.  R.  105 254 

Tower  v.  Lord  Rous,  18  Ves.  132,  13S , 237 

Towle  v.  Mack,  2  Vt.  19 207 

Towner  v.  Tickner,  112  111.  217,  244 285 

Townley  v.  Bedwell,  14  Ves.  592 71 

v.  Sherborne,  Bridg.  35,  2  White  &  T.  Lead.  Cas.  Eq.  1738 205 

Town  of  Cherry  Creek  v.  Becker,  123  N.  Y.  161,  25  N.  E.  369 105 

Town  of  Springport  v.  Teutonia  Sav.  Bank,  75  N.  Y.  397,  402 315 

Town  of  Venice  v.  Woodruff,  62  N.  Y.  462,  468 315 

Townsend  v.  Fenton,  30  Minn.  528,  10  N.  W.  421;  32  Minn.  482,  21  N.  W. 

726  282 

v.  Little,  109  U.  S.  504,  3  Sup.  Ct  357 84,  85 

v.  Whitney,  75  N.  Y.  431 255 

Townshend  v.  Frommer,  125  N.  Y.  446,  26  N.  E.  805 185 

v.  Goodfellow,  40  Minn.  312,  41  N.  W.  1056 277 

v.  Stangroom,  6  Ves.  328 287 

Townshend  Peerage  Case,  10  Clark  &  F.  2S9. .'. 323 

Township  of  Wayne  v.  Cahill,  49  N.  J.  Law,  144,  148,  6  Atl.  621 241 

Tracey  v.  Sacket,  1  Ohio  St.  54 141,  144 


422  CASKS    CITED. 

Page 

Tracy  v.  Colby,  55  Cal.  67 147 

v.  Craig,  55  Cal.  01 147 

v.  Talmage,  14  N.  Y.  162 42 

Trentman  v.  Fletcher,  100  Ind.  105 250 

Trentor  v.  Potheu,  46  Minn.  29S,  49  N.  W.  129 90 

Trevor  v.  Trevor,  1  P.  Wins.  622 184 

Tribette  v.  Illinois  Cent  R.  Co.  (1892)  70  Miss.  182,  12  South.  32 17 

Triebert  v.  Burgess,  11  Md.  452 270 

Trimmer  v.  Bayne,  9  Ves.  209,  211 256 

Trowbridge  v.  True,  52  Conn.  190 304 

Trull  v.  Bigelow,  16  Mass.  406 98 

Truman  v.  Truman,  79  Iowa,  500.  44  N.  W.  721 281 

Trusdell  v.  Lehman,  47  N.  J.  Eq.  218,  20  Atl.  391 127 

Trustees  v.  Guthrie  (1889)  86  Va.  125,  10  S.  E.  31S 187,  191 

Trustees  of  Columbia  College  v.  Lynch,  70  N.  Y.  440,  449-452 103 

v.  Thacher,  87  N.  Y.  311 295 

Trustees  of  Town  of  Brookhaven  v.  Smith,  118  N.  Y.  634,  23  N.  E.  1002. .     48 

Trustees  of  Union  College  v.  Wheeler,  61  N.  Y.  88 215,  246 

Trustees  of  Village  of  Watertown  v.  Cowen,  4  Paige,  510 103 

Tryon  v.  Munson,  77  Pa.  St.  250 210 

Tuchman  v.  Welch,  42  Fed.  548,  559 297 

Tuck  v.  Downing,  76  HI.  71 135 

Tucker  v.  Seaman's  Aid  Soc,  7  Mete.  (Mass.)  1SS 170 

v.  State,  72  Ind.  242 204 

Tulk  v.  Moxhay,  11  Beav.  571;  2  Phil.  Ch.  777 103,  295 

Tunison  v.  Chamblin,  88  111.  378,  390 86 

Tunstall  v.  Christian,  80  Va.  1 „ 304 

Turner's  Estate,  In  re,  1  Misc.  Rep.  58,  23  N.  Y.  Supp.  135 64 

Turman  v.  Bell,  54  Ark.  273,  15  S.  W.  886 86 

Turnan  v.  Hemman,  16  111.  400 109 

Turner  v.  Collins,  7  Ch.  App.  329 150 

v.  Corney,  5  Beav.  517 202 

v.  Crebill,  1  Ohio,  372 94 

v.  Flinn,  67  Ala.  529 257 

v.  Huggins,    14  Ark.   21 138 

v.  Morgan,  8  Ves.  143 262 

v.  Pierce.  34  Wis.  658 13,  14 

v.  Shaw,  96  Mo.  22,  8  S.  W.  897 315 

v.  Turner,  15  Jur.  218;  14  Ch.  Div.  829;  80  Va.  379 9,  130,  251 

v.  Wilkinson,  72  Ala.  301 217 

Turpie  v.  Lowe,  114  Ind.  37,  15  N.  E.  834 216 

Turpin  v.  Banton,  Hardin  (Ky.)  320 270 

Tussaud  v.  Tussaud,  9  Ch.  Div.  363 59,  62,  66 

Tuthill  v.  Morris,  81  N.  Y.  94,  100 37 


CASES    CITED.  423 

Page 

Tuttle  v.  Gilmore,  36  N.  J.  Eq.  617 202,  204 

v.  Jackson,  6  Wend.  213 92 

Twin-Lick  Oil  Co.  v.  Marbury,  91  U.  S.  587 43 

Twombly  v.  Cassidy,  82  N.  Y.  155 224 

Twyne's  Case,  3  Coke,  80,  1  Smith,  Lead.  Cas.  33 155 

Tydings  v.  Pitcher,  82  Mo.  379 87 

Tyler  v.  Hamersley,  44  Conn.  419,  422 9 

v.  Savage,  143  U.  S.  79,  95,  12  Sup.  Ct.  340 11 

v.  Wilkinson,  4  Mason,  397,  Fed.  Cas.  No.  14,312 305 

Tyrrell  v.  Bank  of  London,  10  H.  L.  Cas.  26 14S 

Tyrrell's  Case,  2  Dyer,  155a,  1  White  &  T.  Lead.  Cas.  Eq.  335 167 

Tyson  v.  McGuineas,  25  Wis.  656 240 

v.  Passmore,  2  Pa.  St.  122 120 

v.  Tyson,  31  Md.  134 120 

Tyus  v.  Rust,  37  Ga.  574 329 


u 

Uhlman  v.  New  York  Life  Ins.  Co.,  109  N.  Y.  421,  17  N.  E.  363 249 

Underwood  v.  Curtis,  127  N.  Y.  523,  28  N.  E.  585 71 

Union  Pac.  Ry.  Co.  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  2  C.  C.  A.  174,  51  Fed. 

309    269 

v.  McAlpine,  129  U.  S.  305,  9  Sup.  Ct.  286 281,  282 

Union  Pass.  Ry.  Co.  v.  Mayor,  etc.,  71  Md.  238,  17  Atl.  933 320 

Union  Trust  Co.  v.  Illinois  M.  Ry.  Co.,  117  U.  S.  437,  6  Sup.  Ct.  809 334 

United  States  v.  Beebe,  127  U.  S.  338,  8  Sup.  Ct.  1083 44 

v.  Brighton  Ranche  Co.,  26  Fed.  218 302 

v.  California  &  O.  Land  Co.,  148  U.  S.  31,  13  Sup.  Ct.  458 97,  98 

v.  Elliot,  62  Fed.  801 22 

v.  Insley,  130  U.  S.  263,  9  Sup.  Ct.  485 44 

v.  Steffens,  100  U.  S.  82 309,  310 

v.  Wilson,  118  U.  S.  86,  6  Sup.  Ct.  991 317 

United  States  Trust  Co.  v.  New  York,  W.  S.  &  B.  R.  Co.,  101  N.  Y.  483, 

5  N.  E.  316 333 

Upham  v.  Wyman,  7  Allen,  499,  502 34 

Urann  v.  Coates,  109  Mass.  585 173 

Uren  v.  Walsh,  57  Wis.  98,  14  N.  W.  902 301 

Urquhart  v.  Macpherson,  App.  Cas.  831 139 


V 

Vail  v.  Foster,  4  N.  Y.  312 235 

v.  Reynolds,  118  N.  Y.  297,  302,  23  N.  E.  301 139 


424  CASES    CITED. 

Page 
Valentine  v.  Austin,  124  N.  Y.  400,  26  N.  E.  973 95 

v.  Richardt,  120  N.  Y.  272,  27  N.  E.  255 13 

Van  Alen  v.  American  Nat.  Bank,  52  N.  Y.  1 209 

Vance  v.  Johnson,  10  Humph.  214 216 

Vandever's  Appeal,  8  Watts  &  S.  405 205 

Vandoren  v.  Todd,  3  N.  J.  Eq.  397 233 

Van  Dyke's  Appeal,  60  Pa.  St.  481,  489 54 

Vane  v.  Vane,  8  Ch.  App.  385,  397 140 

Van  Epps  v.  Harrison,  5  Hill,  65 135 

v.  Van  Epps,   9  Paige,   241 146 

Van  Houten  v.  Post,  32  N.  J.  Eq.  709 64 

Van  Keuren  v.  Cent.  R.  Co.,  38  N.  J.  Law,  105,  167 86 

v.  Corkins,  66  N.   Y.  77 244 

Van  Rensselaer  v.  Van  Rensselaer,  113  N.  Y.  213,  21  N.  E.  75 13 

Van  Riper  v.  Van  Riper,  2  N.  J.  Eq.  1 61 

Vansant  v.  Allmon,  23  111.  30 223 

Van  Steenwyck  v.  Washburn,  59  Wis.  483,  509,  17  N.  W.  2S9 57 

Wan  Wegenen  v.  Cooney,  45  N.  J.  Eq.  24,  10  Atl.  689 302 

Varet  v.  New  York  Ins.  Co.,  7  Paige,  560,  24  Wend.  505 12 

Varnum  v.  Leek,  65  Iowa,  751,  23  N.  W.  151 333 

Vason  v.  Ball,  56  Ga.  268 214 

Yasser  v.  Henderson,  40  Miss.  519 -. .  150 

Vaughan  v.   Hewitt,  17  S.  C.  442 294 

v.  Vincent,  88  N.  C.  110 333 

Vaughn  v.  Johnson,  9  N.  J.  Eq.  173 294 

Vaught  v.  Cain,  31  W.  Va.  424,  427,  7  S.  E.  9 278,  285 

Veith  v.  McMurtry,  20  Neb.  341,  42  N.  W.  0 , 103 

Verden  v.  Slocum,  71  N.  Y.  345 222 

Vomer  v.  Betz,  40  N.  J.  Eq.  256,  19  Atl.  206 210 

Vernon  v.   Vawdry,  2  Atk.  119 210 

Very  v.  Russell,  65  N.  H.  646,  23  Atl.  522 223 

Vickers  v.  Vickers,  37  Ch.  Div.  526 64 

Vidal  v.  Girard's  Ex'rs,  2  How.  127,  155,  188-190,  194,  196 170,  187 

Vigers  v.  Pike,  8  Clark  &  F.  562,  565 276 

Village  of  Dwight  v.  Hayes,  150  111.  273,  37  N.  E.  218 306 

Virginia  &  A.  M.  Co.  v.  Hale,  93  Ala.  542,  9  South.  256 14 

Von  Trotha  v.  Bamberger,  15  Colo.  1,  24  Pac.  883 281 

Vose  v.  Cowdrey,  49  N.  Y.  336 27 

Vought  v.  Williams,  120  N.  Y.  253,  24  N.  E.  195 277 

Vreeland  v.  Clafflin,  24  N.  J.  Eq.  313 100 

v.  Ellsworth,  71  Iowa,  347,  32  N.  W.  374 47 


CASES    CITED.  425 

W 

Pag« 

Wabash  &  E.  Canal  Co.  v.  Beers,  2  Black,  448 32 

Wadsworth  v.  Blake,  43  Minn.  509,  45  N.  W.  1131 256 

Wagner  v.  Shank,  59  Md.  313 294 

Wahl  v.  Barnum,  116  N.  Y.  87,  98,  22  N.  E.  280 283 

Waite  v.  Bingley,  21  Ch.  Div.  674,  681 261 

Wake  v.  Conyers,  1  Eden,  331,  2  White  &  T.  Lead.  Cas.  Eq.  850 263 

v.  Wake,  3  Brown,  Ch.  255 56 

Wakeham  v.  Barker,  82  Cal.  46,  22  Pac.  1131 208 

Wakeman  v.  Kingsland,  46  N.  J.  Eq.  113,  18  Atl.  680 329 

Walcott  v.  Watson    (Cir.  Ct)  53  Fed.  429 277 

Walden  v.  Skinner,  101  U.  S.  577,  583 129 

Walker  v.  Brooks,  125  Mass.  241 239 

v.  Hill,  22  N.  J.  Eq.  513 40 

v.  Preswick,  2  Ves.  Sr.  622 234 

v.  Staples,  5  Allen,  34 227 

v.  Struve,  70  Ala.  167 235 

v.  Symonds,  3  Swanst.  1,  64 210 

v.  Walker,  101  Mass.  169 150 

Wallace  v.  Greenwood,  16  Ch.  Div.  3G2 73 

v.  Scoggins,  17  Or.  476,  21  Pac.  558 282 

v.  Stevens,  64  Me.  225 225 

Waller  v.  Arniistead,  2  Leigh  (Va.)  11 150 

v.  Catlett,  83  Va.  200 204 

Walling  v.  Kinnard,  10  Tex.  508 286 

Wallis  v.  Duke  of  Portland,  3  Ves.  502 154 

v.  Smith,  21  Ch.  Div.  243,  260 108,  110 

Walsham  v.  Stainton,  1  De  Gex,  J.  &  S.  678 148 

Walter  v.  Selfe,  4  De  Gex  &  S.  322 303 

Walthen  v.  Smith,  4  Madd.  325 61 

Walton  v.  Hargroves,  42  Miss.  18 235 

v.  Cody,  1  Wis.  420 229 

Ward  v.  Arch,  15  Sim.  389 70 

Wardell  v.  Williams,  62  Mich.  50,  28  N.  W.  796 271 

Warden  v.  Jones,  23  Beav.  487 283 

Warder  v.  Baldwin,  51  Wis.  450,  8  N.  W.  257 50 

Ward's  Ex'rs  v.  Hague,  25  N.  J.  Eq.  397 91 

Warmstrey  v.  Tanfield,  1  Ch.  29,  2  White  &  T.  Lead.  Cas.  Eq.  729 242 

Warner  v.  Bates,  98  Mass.  274 174 

v.  Baynes,  Amb.  589 262 

v.  Conant,  24  Vt.  351 293 

v.  McMullin,  131  Pa.  St.  370,  18  Atl.  1056 11 


426  CASE3   CITED. 

Page 

Warnock  v.  Harlow,  96  Cal.  298,  31  Pac.  1G6 104 

Warren,  Ex  parte,  10  Ves.  621 332 

v.  Rudall,  1  Johns.  &  H.  13 53 

Warren  Co.  v.  Marcy,  97  U.  S.  96 94 

Warren  Mills  v.  New  Orleans  Seed  Co.,  65  Miss.  391,  4  South.  298 18,  300 

Warwick  v.  Queen's  College  (1871)  6  Ch.  App.  716 16 

Washburn  v.   Goodheart,  88  El.   229 160 

v.  Van  Steenwyk,  32  Minn.  336,  20  N.  W.  324 57 

Washington  v.  Trousdale,  Mart.  &  Y.  385 92 

Waterman  v.  Banks,  144  U.  S.  394,  12  Sup.  Ct.  646 279 

v.  Matteson,   4  It.   I.  539 216 

v.  Spaulding,   51   111.   425 200 

Watson  v.  Doyle,  130  111.  415,  22  N.  E.  613 275 

v.  Ferrell,  34  W.  Va.  406,  12  S.  E.  724 10 

v.  Hunter,  5  Johns.  Ch.  169 299 

v.  Marston,  4  De  Gex,  M.  &  G.  230 274 

v.  Sutherland,  5  Wall.  74 290 

v.  Watson,  128  Mass.  152;   33  Beav.  574 56,  65 

v.    Wilcox,   39   Wis.   643 256 

Watts  v.  Kellar,  5  C.  C.  A.  394,  56  Fed.  1 273 

Weakley  v.  Watkins,  7  Humph.  (Tenn.)  356 39,  41 

Weaver  v.  Barden,  49  N.  Y.  286 95 

v.  Carpenter,  42  Iowa,  345 140 

v.  Leiman,    52    Md.    708 193 

v.  Shenk,  154  Pa.  St.  206,  26  Atl.  811 277 

Webb,  Estate  of,  49  Cal.  541,  545 177 

v.  Earl  of  Shaftesbury,  7  Ves.  4S0 206 

v.  Fuller,  77  Me.  568,  1  Atl.  737 249 

v.  Hoselton,   4   Neb.    308 186 

v.  Smith,  30   Ch.   Div.   192 258 

Webber  v.  Clark,  136  111.  256,  26  N.  E.  360,  and  32  N.  E.  748 100 

Webster  v.  Cecil,  30  Beav.  62 276 

v.  Clark,  25  Me.  314 156 

v.  Dillon,   3  Jur.    (N.   S.)   432 296 

v.  Morris,  66  Wis.  366,  28  N.  W.  353 188,  190 

Webster's  Appeal,  86  Pa.  St.  409 256 

Wedgewood  v.  Adams,  6  Beav.  600,  8  Beav.  103 274 

Weeks  v.  Hobson,  150  Mass.  377,  23  N.  E.  215 190 

v.  Weeks,  5  Ired.  Eq.  Ill 263 

Weener  v.  Brayton,  152  Mass.  101,  25  N.  E.  46 309 

Weinstein  v.  National  Bank,  69  Tex.  38,  6  S.  W.  171 50 

Weir  v.  Day,  57  Iowa,  84,  10  N.  W.  304 156 

Welch  v.  Whelpley,  62  Mich.  15,  28  N.  W.  744 283 


CASES    CITED.  427 

Page 

Welles  v.  Yates,  44  N.  T.  525,  529 315 

Wellesley  v.  Mornington,  2  Kay  &  J.  143 162 

Wells  v.  Foster,  8  Mees.  &  W.  149 241 

v.  Miller,   66   N.    Y.    255 252 

v.  Neff,  14  Or.  66,  14  Pac.  84,  S8 101 

v.  Smith,  44  Miss.  296 236 

v.  Waterhouse,  22  Me.  131 137 

Welsh  <\  Crater,  32  N.  J.  Eq.  177 72 

Wentz's  Appeal,  126  Pa.  St.  541,  17  Atl.  875 73 

Werner  v.  Rawson,  89  Ga.  620,  15  S.  E.  813 126 

West  v.  Holmesdale,  L.  R.  4  H.  L.  545,  553 183 

v.  Mayor,    10   Paige,   539 9 

Westby  v.  Westby,  2  Dru.  &  War.  505 121 

Westcott  v.  Middleton,  43  N.  J.  Eq.  478,  11  Atl.  490 303 

Western  Bank  v.  Sherwood,  29  Barb.  383 245 

Weston  v.  Johnson,  48  Ind.   1 65 

West  Point  Iron  Co.  v.  Reymert,  45  N.  Y.  703 301 

Wetherell  v.  Eberle,  123  111.  666,  14  N.  E.  675 317 

v.  Joy,  40  Me.  325 250 

Wetherill  v.  Hough  (N.  J.  Ch.)  29  Atl.  592 74 

Whaley  v.  Elliot,  1  A.  K.  Marsh.  345 44 

v.  Whaley,  71  Ala.  159 195 

Wharton,  In  re,  5  De  Gex,  M.  &  G.  33 79 

Whatley  v.  Barker,  79  Ga.  790,  4  S.  E.  387 37 

Wheaton  v.  Peters,  8  Fet.  (U.  S.)  591 307 

Wheeler  v.  Connecticut  Mut.  Life  Ins.  Co.,  82  N.  Y.  543,  550 117 

v.  Insurance  Co.,  101  U.   S.  439 27 

v.  McGuire,  86  Ala.  398,  5  South.  190 89 

v.  Sage,  1  Wall.  518,  529 40,  151 

Wheelock  v.  Noonan,  108  N.  Y.  179,  15  N.  E.  07 18,  301 

Whelan  v.  Whelan,  3  Cow.  537 153,  173 

Wheldale  v.   Partridge,  8   Ves.   236 7S 

Wheless  v.  Wheless  (Tenn.)  21  S.  W.  595 68 

Whipple  v.  Fair  Haven,  63  Vt.  221,  21  Atl.  533 14 

White  v.  Ashton,  51  N.  Y.  2S0 47 

v.  Blakemore,   8   Lea,  49 236 

v.  Carpenter,  2  Paige,  217,  239 195 

v.  Coleman,    127    Mass.    34 244 

v.  Denman,  1  Ohio  St.  110 90 

v.  Downs,  40  Tex.  225 233 

v.  Foster,  102  Mass.  375,  380 87,  88 

v.  Jones,  92  N.   C.  388 233 

v.  Meday,  2  Edw.  Ch.  486 12 

V.  Megill  (N.  J.  Ch.)  18  Atl.  355 217 


428  CASES    CITED. 

Page 

White  y.  Miller,  47  Ind.  385 254 

v.  O'Bannon,  86  Ky.  93,  5  S.  W.  346 281 

v.  Patterson,  130  Pa.  St.  429,  21  Atl.  360 86 

v.  Richmond  &  D.  R.  Co.,  110  N.  C.  456,  461,  15  S.  E.  197 125 

v.  Rittenmyer,  30  Iowa,  268 214 

v.  Williams,  1  Paige,  502 234 

Whitecar  v.  Michenor,  37  N.  J.  Eq.  6,  14 288 

Whitoeomb  v.  Jacob,  1  Salk.  161 209 

Whitehead  v.  Kitson,  119  Mass.  484 311 

v.  Wells,   29  Ark.  99 89 

Whitely  v.  Learoyd,  33  Ch.  Div.  347,  355 203 

Whitfield  v.  Levy,  35  N.  J.  Law,  149 109 

Whitman   v.  Porter,   107  Mass.   522 252 

v.  Weston,  30  Me.   2S5 105 

Whitmore  v.  Hay  (Wis.)  55  N.  W.  708 120 

Whitney  v.  Burr,  115  111.  2S9,  3  N.  E.  434 267 

v.  Union  Railway  Co.,  11  Gray,  359,  308 103 

Whitridge  v.  Durkee,  2  Md.  Ch.  442 254 

v.  Whitridge,  76  Md.  54,  24  Atl.  645 152 

Whitten  v.  Whitten,  36  N.  H.  332 260 

Whitton  v.   Russell,  1   Atk.  448 115 

Whitwell  v.  Winslow,  134  Mass.  346,  347 47 

Wickersham  v.  Crittenden,  93  Cal.  32,  28  Pac.  788 22 

Wickes  v.  Lake,  25  Wis.  71 85 

Wickman  v.  Robinson,  14  Wis.  493 236 

Wier  v.  Johns  (Colo.  Sup.)  24  Pac.  262 126 

Wilbanks  v.  Wilbanks,  18  111.  17 51 

Wilber  v.  Lynde.  49  Cal.  290 148 

Wilcocks  v.  Wilcocks,  2  Vera.  558,  2  White  &  T.  Lead.  Cas.  Eq.  *415,  417. . 

28,  66 

Wilcox  v.  Hill,  11  Mich.  256 83 

Wilde  v.  Gibson,  1  H.  L.  Cas.  605 138 

Wilder  v.  Pigott,  22  Ch.  Div.  263 57 

v.  Ranney,  95  N.  Y.  7,  12 75 

Wilhelm  v.  Eaves,  21  Or.  194,  27  Pac.  1053 109 

Wilhelmson  v.  Bentley,  25  Neb.  473,  41  N.  W.  387 313 

Wilkinson  v.  Babbitt,  4  Dill.  207,  Fed.  Cas.  No.  17,668 256 

v.  Elliott,  43  Kan.  590,  23  Pac.  614 93 

v.  May,   69  Ala.   33 234 

v.  Searcy,  74  Ala.   243 328 

v.  Sherman,  45  N.  J.  Eq.  421,  18  Atl.  22S 144 

v.  Sterne,  9  Mod.  427 250 

v.  Stuart,  74  Ala.  198,  203 260,  261 

v.  Wilkinson,  2  Sim.  &  S.  237 207 


CASES    CITED.  429 

Page 
Willan  v.  Willan,  16  Ves.  72 120 

Willard  v.  Finnegan,  42  Minn.  476,  44  N.  W.  985 224 

v.  Tayloe,  8  Wall.  557,  567 40,  274 

Willesford  v.  Watson,  L.  R.  14  Eq.  572 269 

William  Rogers  Manuf'g  Co.  v.  Rogers,  58  Conn.  356,  20  Atl.  467 268,  296 

Williams  v.  Fitch,   18  N.  Y.  546 200 

v.  Haynes,  78  Ga.   133 10 

v.  Howard,  3  Murph.  (N.  C.)  74 267 

v.  Ingersoll,  89  N.  Y.  508 244 

v.  Jenkins,  11   Ga.  595 333 

v.  Lambe,  3  Brown,  Ch.  Cas.  264 106 

v.  McKay,  46  N.  J.  Eq.  25,  18  Atl.  824 204 

v.  Matthews,  47  N.  J.  Eq.  196,  20  Atl.  261 328 

v.  Nichol,  47  Ark.  254,  1  S.  W.  243 202,  211 

v.  Powell,  66  Ala.  20 147 

v.  Robinson,  16  Conn.  517 333 

v.  Spurr,   24  Mich.  335 13S 

v.  Vreeland.  32  N.  J.  Eq.  135 199 

v.  Williams,  63  Md.  371;    55  Wis.  300,  12  N.  W.  405,  and  13  N.  W. 

274 144,  150,  208 

William's  Appeal,   73  Pa.    St.  249 162 

Williamson  v.  Brown,  15  N.  Y.  354 82 

v.  Hitner,  79  Ind.   233 119 

Willis  v.   Gay,  48  Tex.  463 87 

v.  Mclntyre,  70  Tex.  34,  7  S.  W.  594 251 

v.  Morris,    63    Tex.    458 154 

v.  Smyth,  91   N.   Y.  297 178 

v.  Willis,  2  Atk.  71 196 

Willmott  v.  Barber,  15  Ch.  Div.  96,  106 126 

Willoughby  v.  Lawrence,  116  111.  11,  4  N.  E.  356 103 

Will's  Appeal,  22  Pa.  St.  325 201 

Wills  v.  Stradling,  3  Ves.  378 2S2 

Wilson  v.  Davisson,  2  Rob.  (Va.)  3S4,  404 231 

v.  Eigenbrodt,  30  Minn.  4,  13  N.  W.  907 219 

v.  Furness  R.  Co.,  L.  R.  9  Eq.  28,  33 268 

v.  Hart,    1   Ch.   App.   463 87 

v.  Hill,  46  N.  J.  Eq.  369,  19  Atl.  1097 301 

v.  Hooser,  72  Wis.  420,  39  N.  W.  772 317 

v.  Joseph,  107  Ind.  490,  8  N.  E.  616 30 

v.  McCarty,  55  Md.  277 44 

v.  Roots,  119  111.  379,  10  N.  E.  204 279 

v.  Webber,  2  Gray,  558 321 

v.  Western  N.  C.  Land  Co.,  77  N.  C.  445 104 


4  30  CASES    CITED. 

Pago 

Winans  v.  Huyck,  71  Iowa,  459,  32  N.  W.  422 315 

Winchell  v.  Winchell,  100  N.  Y.  159,  163,  2  N.  E.  897 282 

Winchester  v.  Baltimore  &  S.  R.  Co.,  4  Md.  231 89 

Wing  v.  Spaulding,  64  Vt.  83,  23  Atl.  615 328 

Winkfield  v.  Combe  (1679)  2  Ch.  Cas.  16 129 

Winslow  v.  Cummings,  3  Cush.  358 171 

Winston  v.  Gwathney,  8  B.  Mon.  19 136 

Winters  v.  Bank,  33  Ohio  St.  250 219 

Wintour  v.  Clifton,  8  De  Gex,  M.  &  G.  641,  650 53 

Wisconsin  Cent.  R.  Co.  v.  Wisconsin  River  Land  Co.,  71  Wis.  94,  36  N.  W. 

837    186,  215 

Wise  v.  Grand  Ave.  R.  Co.,  33  Fed.  277 307 

Wiseman  v.  Hutchinson,  20  Ind.  40 87 

Wisner  v.  Dodds,  14  Fed.  656 322 

Wiswell  v.  First  Cong.  Church,  14  Ohio  St.  31 313 

Withers  v.  Jenkins,  6  Rich.  (N.  S.)  122 91 

v.  Sims,  80  Va.  651 15 

W.  J.  Johnston  Co.  v.  Hunt,  21  N.  Y.  Supp.  314,  66  Hun,  504 15 

Wolverhampton  &  W.  R.  Co.  v.  London  &  N.  W.  R.  Co.,  L.  R.  16  Eq.  433 

438     295 

Womack  v.  Powers,  50  Ala.  5 292 

Wood  v.  Burnham,  6  Paige,  514 184 

v.  Chapin,  13  N.  Y.  509 96 

v.  City  of  Brooklyn,  14  Barb.  425 9 

v.  Swift,  SI  N.  Y.  31 294 

v.  Trask,  7  Wis.  566 215 

Woodall  v.  Kelly,  85  Ala.  368,  5  South.  164 232 

Woodburn's  Estate,  138  Pa.  St.  606,  21  Atl.  16 57 

Woodbury  v.  Woodbury,  141  Mass.  329,  5  N.  E.  275 153 

Woodcock  v.  Bennett,  1  Cow.  711 14 

Woodruff  v.  Morristown  Inst.,  34  N.  J.  Eq.  174 246 

v.  Semi-Tropic  Land  &  Water  Co..  87  Cal.  275,  25  Pac.  354 279 

v.  Woodruff,  44  N.  J.  Eq.  349,  16  Atl.  4 273,  277 

Woods  v.  Evans,  113  111.  186 277 

v.  Farmere,   7  Watts,   382,  387 83 

Woolcocks  v.  Hart,  1  Paige  (N.  Y.)  185 257 

Wooldridge  v.  Norris,  L.  R.  6  Eq.  410 254 

Woollam  v.  Hearn,  2  White  &  T.  Lead.  Cas.  Eq.  920 287 

Woolley  v.  Holt,  14  Bush,  788 214 

Woolsey  v.  Judd,  4  Duer,  379 30S 

Word  v.  Word,  90  Ala.  81,  7  South.  412 332 

Wormer  v.  Waterloo  Agricultural  Works,  62  Iowa,  699,  14  N.  W.  331 256 

Wormley  v.  Wormley,  8  Wheat.  421 147 


CASES   CITED.  431 

Page 

Worrall  v.  Harford,  8  Ves.  4,  8 207 

v.  Munn,  38  N.  Y.  137 284 

Worsley  v.  Earl  of  Scarborough,  3  Atk.  392 94 

Worth  v.  Hill,  14  Wis.  559 225 

Worthy  v.  Brady,  91  N.  C.  269 157 

v.  Caddell,  76  N.  C.  82 90 

Wragg  v.  Comptroller  General,  2  Desaus.  Eq.  509,  520 233 

Wright  v.  Arnold,  14  B.  Mon.  638 150 

v.  Ellison,  1  Wall.  16,  22 7 

v.   Henderson,    12   Tex.   43 215 

v.  Laing,  3  Barn.  &  C.  165 251 

v.  Marsh,  2  G.  Greene  (Iowa)   104 260 

v.  Moore,   38   Ala.   593 305 

-v.  Pearson,  1  Eden,  119 184 

v.  Ross,   36   Cal.   414 227 

v.  Vanderplank.  8  De  Gex,  M.  &  G.  133,  135,  137,  146 150-152 

v.  Wilkin,  2  Best  &  S.  232 174 

"Wristen  v.  Bowles,  82  Cal.  84,  22  Pac.  1136 271 

Wurts'  Ex'rs  v.  Page,  19  N.  J.  Eq.  365 70,  72 

Wyatt  v.  Barwell,  19  Ves.  435 92 

v.  Stewart,  34  Ala.  716 92 

Wylson  v.  Dunn,  34  Ch.  Div.  569,  577 273 

Wythes  v.  Labouehere,  5  De  Gex  &  J.  595 139 

v.  Lee,  3  Drew,  396 236 


Y 

Yancey  v.  Mauck,  15  Grat.  300 235 

v.  Radford,  86  Va.  63S,  10  S.  E.  972 259 

Yaple  v.  Stephens,  36  Kan.  6S0,  14  Pac.  222 255 

Yarbrough  v.  Thompson,  3  Smedes  &  M.  (Miss.)  291 326 

Yard  v.  Pacific  Mut.  Ins.  Co.,  10  N.  J.  Eq.  480 38 

Yauger  v.  Skinner,  14  N.  J.  Eq.  3S9 143 

Youmans  v.  Youmans,  26  N.  J.  Eq.  149,  154 15 

Youn  v.  Lamont  (Minn.)  57  N.  W.  478,  480 145 

Young  v.  Devries,  31  Grat.  304 100 

v.  English,  7  Beav.  10 250 

v.  Kellar,  94  Mo.  581,  7  S.  W.  293 96 

v.  Young,  80  N.  Y.  422,  437;    45  N.  J.  Eq.  27,  34,  39,  16  Atl.  921 

178,  275,  281 

Youst  v.  Martin,  3  Serg.  &  R.  423 96 

Yundt's  Appeal,  13  Pa.  St.  575 64 


432  CASES   CITED. 

Z 

Page 

Zabriskle  v.  Smith,  13  N.  Y.  322 240 

Zaegel  v.  Kuster,  51  Wis.  31,  7  N.  W.  781 224 

Zeisweiss  v.  James,  63  Pa.  St.  405 188 

Zimmerman  v.  Fraley,  70  Md.  561,  17  Atl.  560 210 

Zoeller  v.  Riley,  100  N.  Y.  108,  2  N.  E.  388 98,  105 

Zuchtmann  v.  Roberts,  109  Mass.  53 49 


INDEX. 


(the  figures  refer  to  pages.) 


A 

ACCIDENT, 

definition,  113. 

grounds  for  relief  against,  114. 

conscientious  title  to  relief,  114. 

no  relief  against  contract  obligations,  115. 
Inadequate  remedy  at  law,  11G. 
lost  instruments,  117. 
destruction  of  trust  estate,  117. 
judgments  at  law,  117. 
penalties  and  forfeitures,  118. 

ACCOUNTING, 

mistake  in  settlement  of  accounts,  130. 
at  law  and  in  equity,  247. 
equity  jurisdiction,  248. 

fiduciary  relation  between  parties,  248. 

mutual  accouuts,  249. 

complicated  cases,  249. 
application  of  payments,  249. 

by  debtor,  249. 

by  creditor,  250. 

by  the  law,  251. 

ACCUMULATION, 

of  rents  and  profits  of  trust  estate,  181. 

ACTIONS, 

at  law,  injunction  against  prosecution,  291. 

ACTIVE  TRUSTS, 

nature  of  cestui  que  trust's  estate,  1S5. 

ACTUAL  NOTICE, 
see  "Notice." 

ADEMPTION, 

testamentary  provision  followed  by  gift  or  advancement,  61. 
eq.jur.— 28  (433) 


434  INDEX. 

[The  figures  refer  to  pages.] 

ADEQUATE  REMEDY  AT  LAW. 
test  of  jurisdiction,  10. 
rnulticiplicity  of  suits,  16. 
in  case  of  accident,  110. 
injunction,  290. 

ADJOINING    LANDOWNERS, 

injunctions  to  protect  lateral  and  subjacent  support,  303. 

AIR, 

injunction  against  pollution  of,  303. 

ALIENS. 

as  trustees,  171. 

ANCILLARY   REMEDIES. 

see  "Discovery";    'Tnterpleadei'";    "Ne  Exeat";    "Perpetuation  of  Test! 
mony";    "Receivers";    "Witness,  Examination  de  Bene  Esse." 

ARBITRATION  AND  AWARD, 

contract  for  arbitration,  specific  performance,  269. 
award,  specific  performance.  269. 

ASSIGNMENT, 

definition  of  term,  238. 

of  cboses  in  action,  and  possibilities  prohibited  at  common  law  but  per- 
muted in  equity,  23S. 
relaxation  of  common-law  rule,  239. 
what  assignments  now  recognized  at  law,  239. 
survival  of  cause  of  action  the  test,  239. 
assignments  void  as  against  public  policy,  241. 
champerty  and  maintenance,  241. 
salaries  of  public  officers,  241. 
equitable  assignments,  241. 

assignment  of  possibility  or  expectancy,  242. 
of  property  to  be  acquired  in  the  future,  242. 
of  future  wages,  243. 
order  on  specific  fund,   243 

notice  to  assignee,  244. 
notice  to  debtor,  244. 

priorities  between  assignees,  245. 
assignee  takes  subject  to  equities,  245. 

rights  of  second  assignee  as  against  assignor,  246. 
rule  does  not  apply  to  negotiable  paper,  246. 
of  dower,  261. 
of  mortgage,  21S. 
of  vendor's  lien.  2'.i3. 


INDEX.  435 

[The  figures  refer  to  pages.) 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS, 
as  an  active  trust,  185. 

ATTORNEY  AND  CLIENT, 
contracts  between,  149. 

B 

BILL  OF  PEACE, 

preventing  multiplicity  of  suits,  16. 

BILL  TO  PERPETUATE  TESTIMONY, 
see  "Perpetuation  of  Testimony." 

BONA  FIDE  PURCHASERS, 
definition,  95. 
valuable  consideration,  95. 

antecedent  debts,  96. 

adequacy  of  consideration,  96. 

payment  before  notice,  96. 
good  faith,  96. 
notice,  97. 

vendee  in  quitclaim  deed,  97. 

bona  fide  purchaser  from  purchaser  with  notice, 
see,  also,  "Priorities." 

BOUNDARIES, 

settlement  of,  263. 

c 

CANCELLATION, 

basis  of  jurisdiction,  315. 
void  instruments,  315. 

invalidity  apparent  on  face,  315. 
instrument  apparently  valid,  316. 
voidable  instruments,  316. 
not  granted  as  against  bona  fide  purchaser  of  legal  title  without  notice. 

104. 
of  contract  for  fraud,  130. 

CATCHING   BARGAINS, 
presumption  of  fraud,  142. 

CESTUI  QUE  TRUST, 
see  "Trusts." 

CHARITIES, 

what  are,  186. 

distinctions  between  private  and  charitable  trusts,  188. 
cy  pres  doctrine,  189. 


436  INDEX. 

[The  figures  refer  to  pages.] 

CHATTEL  MORTGAGES, 
definition,  220. 
mortgagee's  title,  220. 
equity  of  redemption,  220. 
distinction  between,  and  pledge,  227. 
see,  also,  "Mortgages." 

CLOUD  ON  TITLE, 
suit  to  remove,  316. 
basis  of  jurisdiction,  316. 
possession  necessary,  317. 

COMPENSATION, 

specific  performance  with  compensation,  283. 

COMPOSITION  WITH  CREDITORS, 
secret  preferences,  154. 

COMPROMISE, 

effect  of  mistake  of  law,  121. 

CONDITIONAL  SALE, 

or  mortgage,  217. 
CONSIDERATION, 

conveyances  without,  resulting  trusts.  193. 

equity  founded  on  value,  superior  to  one  founded  on  voluntary  transfer, 
99. 

inadequacy,  presumption  of  fraud,  141. 

as  defense  to  suit  for  specific  performance.  274. 

payment  of,  as  part  performance  of  contract,  282. 

to  support  trust,  170. 

valuable  consideration  necessary  to  constitute  bona  fide  purchaser,  95. 
CONSTRUCTIVE  NOTICE, 

see  "Notice," 
CONSTRUCTIVE  TRUSTS, 

see  "Trusts." 
CONTEMPT, 

disobedience  of  decrees  of  equity,  29. 
CONTRACTS, 

effect  of  mistake,  see  "Mistake." 

for  sale  of  land,  conversion,  69. 

injunction  against  breach,  294. 

of  fiduciary  character,  when  silence  is  fraud.  138. 

relief  against  on  ground  of  accident,  115. 

with  persons  under  mental  disability  or  duress,  143. 
see,  also,  "Specific  Performance." 


INDEX.  437 

[The  figures  refer  to  pages.] 

CONTRIBUTION, 

equality  is  equity,  32.  252. 

between  partners,  253. 

between  corporate  stockholders,  253. 

between  sureties,  253. 

contracts  affecting  right  to,  253. 

none  between  wrongdoers,  253. 

between  persons  liable  for  mortgage  debt,  225. 

CONVERSION, 
definition,  67. 

equity  looks  on  that  as  done  which  ought  to  be  done,  26. 
words  sufficient  to  work  a  conversion,  68. 

contract  for  sale  of  land,  69. 
time  of  conversion,  69. 

lease  with  privilege  of  purchase,  71. 
effect  of  conversion,  7L 

effect  of  actual  conversion  rightly  made,  72. 

conversion  exists  only  for  purpose  of  instrument  directing  it,  74. 
total  or  partial  failure  of  purposes  for  which  conversion  is  directed,  76. 

total  failure,  76. 

partial  failure,  77. 

conversion  directed  by  will,  77. 
conversion  directed  by  deed,  77. 
double  conversion,  78. 
reconversion,  79. 

COPYRIGHT, 

injunction  against  infringement,  307. 

CORPORATIONS, 

acting  as  trustees,  170. 

capital  stock  trust  fund  for  creditors,  21. 

contracts  between  officers  and  corporation,  150. 
for  sale  of  stock,  specific  performance,  266. 

contribution  between  stockholders  liable  for  debts  of,  253. 

injunction  against  violation  of  rights  of  stockholders,  312. 

receivers  of,  334. 
COVENANTS, 

restrictive,  injunction  against  breach,  295. 
purchaser  with  notice,  103. 

CRIMES, 

equity  has  no  jurisdiction  over,  8. 

jurisdiction  not  divested  because  wrongful  act  is  a  crime.  8. 

statutes  conferring  jurisdiction,  constitutional,  8. 


438  INDEX. 

[The  figures  refer  to  pages.] 

CY  PRES. 

doctriue  of,  189. 

D 
DAMAGES, 

liquidated  damages  or  penalty,  108. 

DE  BENE  ESSE, 

see  "Witness,  Examination  de  Bene  Esse." 

DEED, 

absolute,  as  mortgage,  210. 

DEFINITION, 
of  accident,  113. 
of  equity.  1. 
of  injunction,  288. 
of  mistake,  117. 

DEPOSITION, 

see  "Perpetuation  of  Testimony";   "Witness.  Examination  de  Bene  Esse." 

DEPOSIT  OF  TITLE   DEEDS, 
lien  created  by,  229. 

DISCOVERY, 

definition,  318. 
origin,  318. 

effect  of  statutes  removing  interest  as  ground  for  disqualification  of  wit- 
ness, 320. 
rules  respecting  discovery,  320. 

incriminating  matters,  320. 

confidential  communications,  321. 

public  business,  321. 

extent  of  disclosure  required,  321. 
production  of  documents,  321. 
retainiug  jurisdiction  to  award  complete  relief,  14. 

DOCUMENTS, 

compelling  production  of,  321. 

DOWER, 

assignment  of,  261. 

election  between,  and  testamentary  gift.  55. 

DRUNKENNESS, 

contracts  with  intoxicated  persons,  144. 


INDEX.  439 

[The  figures  refer  to  pages.] 


E 

EASEMENTS, 

of  light  and  access,  protection  by  injunction,  306. 

ELECTION, 
definition,   50. 
in  favor  of  instrument,  51. 
against  instrument,  51. 
conditions  requiring  election,  52-54. 

intention  to  dispose  of  donee's  property,  52. 
intention  must  clearly  appear,  52. 
parol  evidence  not  admissible  to  prove  intention,  53. 
will  partially  invalid,  54. 

gift  to  person  required  to  elect,  54. 
election  between  dower  and  testamentary  gift,  55. 
mode  of  election,  55. 

express  election,  55. 

implied  election,  56. 
ascertainment  of  values,   56. 
election  by  persons  under  disability,  57. 

married  women,   57. 

infants,  57. 

lunatics,  57. 
effect  of  election,  58. 

EQUITABLE  ESTOPPEL, 
see  "Estoppel,"  50. 

EQUITABLE    LIENS, 
see  "Liens." 

EQUITABLE    MORTGAGES, 
what  are,  228. 

EQUITABLE  WASTE, 
injunction  against,  299. 

EQUITY, 

definition  and  nature  of,  1. 

equity  will  not  suffer  a  right  to  be  without  a  remedy,  20. 

equity  regards  substance  rather  than  form,  23. 

equity  looks  on  that  as  done  which  ought  to  be  done,  25. 

equity  imputes  an  intention  to  fulfill  an  obligation,  27. 

equity  acts  in  personam,  and  not  in  rem,  28. 

equity  acts  specifically,  and  not  by  way  of  compensation,  31. 

equity  follows  the  law,  33. 


•140  INDEX. 

[The  figures  refer  to  pages.] 

EQUITY— Cont'd, 

equity  aids  the  vigilant,  uot  those  who  slumber  on  their  rights,  42. 
see,  also,  "Maxims." 

ESTOPPEL, 

equitable,  definition,  45. 

essential  elements,  47-50. 

misrepresentation  or  concealment  of  material  facts,  47. 
knowledge  of  falsity,  47. 
Ignorance  of  facts  by  other  party,  48. 
intent  to  have  representations  acted  on,  48. 
reliance  on  representations,  49. 
effect  of  estoppel,  50. 
equitable  estoppel  originates  in  the  maxim  that  he  who  asks  equity  must 

do  equity,  38. 
equity  of  person  misled,  superior  to  his  who  has  misled  him,  101. 

EVIDENCE, 

degree  of  proof  required  for  reformation,  315. 

parol,  as  to  fraud  aud  mistake  in  suit  for  specific  performance,  2S6. 

parol,  to  establish  resulting  trust,  194,  195. 

parol,  to  prove  absolute  deed  a  mortgage    216. 

parol,  to  prove  mistake  and  fraud,  128. 

parol,  to  show  intention  in  cases  of  satisfaction,  58. 

see  "Witness,  Examination  de  Bene  Esse";    "Perpetuation  of  Testi- 
mony." 

EXECUTED  TRUSTS, 
interpretation,  182. 

EXECUTORY  TRUSTS, 
interpretation,  182. 

EXONERATION, 

when  right  exists,  253. 

rights  of  surety  as  against  principal,  254. 

of  person  paying  mortgage  debt,  225. 

EXPRESS  NOTICE, 
see  "Notice." 

F 

FALSE    REPRESENTATIONS, 

see  "Estoppel";    "Fraud." 

FORECLOSURE, 
of  mortgage,  220. 

FORFEITURES, 

see  "Penalties  and  Forfeitures.'* 


INDEX.  441 

[The  figures  refer  to  pages. J 

FRAUD, 

equity  looks  on  that  as  done  which  ought  to  be  done,  26. 

equity  regards  substance  rather  than  form,  25. 

he  who  comes  into  equity  must  come  with  clean  hands,  40. 

definition,  130. 

classification,  132. 

actual  fraud,  133. 

wrongful  acts  or  misrepresentations,  133. 

representation  must  be  contrary  to  fact,  134. 
must  be  of  fact  and  not  of  opinion.  134. 
knowledge  of  falsity,  135. 

reckless  representations.  135. 
negligent  ignorance,  135. 
materiality  of  misrepresentation  and  reliance  thereon,  136. 
wrongful  omissions,  137. 

patent  and  latent  defects,  138. 
contracts  of  a  fiduciary  nature,  138. 
rights  and  duties  of  defrauded  party,  139. 

fraud  renders  transactions  voidable,  not  void,  139. 
must  act  with  reasonable  diligence,  140. 
must  come  with  clean  hands,  140. 
against  whom  rescission  will  be  granted,  140. 
Inequitable  or  unconscientious  transactions,  140. 

presumption  of  fraud  from  nature  of  transaction,  141. 
inadequacy  of  consideration,  141. 
catching  bargains,  142. 
post  obit  bonds,  142. 
fraud  presumed  from  position  or  condition  of  parties,  142. 

contracts  with  persons  under  mental  disability  or  duress,  143. 
insanity,  143. 
mental  weakness,  144. 
drunkenness,    144. 
duress  and  undue  influence,  145. 
contracts  between  persons  in  fiduciary  relations,  145. 
between  trustee  and  cestui  que  trust,  146. 
where  trustee  contracts  with  himself,  146. 
where  trustee  deals  with  cestui  que  trust,  147. 
between  principal  and  agent,  147. 

dealings  without  intervention  of  principal,  148. 
dealings  between  agent  and  principal,  148. 
between  attorney  and  client,  149. 
between  guardian  and  ward,  150. 
between  parent  and  child,  150. 


442  INDEX. 

[The  figures  refer  to  pages.] 

FRAUD— Cont'd, 

between  corporate  officers  and  corporation,  150. 
between  executors  and  administrators,  150. 
between  partners,  151. 
between  husbands  and  wives,  151. 
gifts  between  persons  in  fiduciary  relations,  151. 
persons  within  operation  of  principle,  152. 
frauds  on  third  persons,  153. 

secret  preference  in  composition  with  creditors,  154. 
fraudulent  conveyances,  155. 
the  creditor,  150. 

must  have  lien  on  property,  150. 

demand  need  not  be  liquidated  at  time  of  transfer,  156. 
existing  and  subsequent  creditors,  157. 
Intent  to  defraud,  157. 

grantee's  participation  in  fraudulent  intent,  158. 
transfer  of  property,  ir.9. 
exempt  property,  159. 
personal  services  of  debtor,  100 
fraud  on  marital  rights,  1(>0. 

conveyance  of  property  in  contemplation  of  marriage,  100. 
fraud  on  powers,  101. 

illusory  appointment,  101. 
as  basis  of  constructive  trusts,  198. 
as  defense  to  suit  for  specific  performance   276. 
execution  of  written  contract  prevented  by,  283. 
mistake  of  law  procured  by,  120. 

FRAUDS,   STATUTE   OF, 

as  defense  to  suit  for  specific  performance,  280. 
effect  on  private  trusts,  173. 
not  an  instrument  of  fraud.  29. 

FRAUDULENT  CONVEYANCES, 
see  "Fraud." 

G 

GIFTS,      . 

between  persons  in  fiduciary  relations,  151. 
imperfect,  invalid  as  trust,  178. 

GOOD  FAITH, 

bona  fide  purchaser,  95. 

GOOD  WILL, 

sale  of,  injunction  against  violation,  295. 


INDEX.  443 

[The  figures  refer  to  pages.] 

H 

HUSBAND  AND  WIFE, 

wife's  equity  to  settlement,  37. 
see,  also,  "Married  Women." 

I 

ILLEGALITY, 

he  who  comes  into  equity  must  come  with  clean  hands.  40. 
of  contract,  as  ground  for  refusing  specific  performance,  272. 
illegal  object  of  trust,  180,  192. 

IMPLIED  NOTICE, 

see  "Notice." 
IMPROVEMENTS, 

as  part  performance  of  contract,  2S1. 

lien  for,  230. 

INFANCY, 

election  by  infant,  57. 
infant  as  trustee,  171. 
INJUNCTION, 
definition,   288. 
mandatory   injunctions,   288. 
preventive  injunctions,   281*. 
interlocutory    injunctions,    289. 
final  injunctions,  289. 
jurisdictional  principles,  289. 

inadequate  remedy  at  law,  290. 

Irreparable  injury,  290. 
classes  of  cases  where  injunction  may  be  used,  290. 
to  restrain  proceedings  at  law,  29,  291. 

basis  of  jurisdiction,  291. 

before  judgment,  291. 

after  judgment,  292. 
grounds  for,  293. 

effect  of  power  of  common-law  courts  in  regard  to  new  trials,  294. 

effect  of  right  to  interpose  equitable  defense  in  legal  action,  294. 
to  restrain  breach  of  contract,  294. 

equivalent  to  specific  performance,  294. 

test  of  right  to  injunction,  295. 

restrictive  covenants  in  deed,  295. 

contracts  in  partial  restraint  of  trade,  295. 

contracts  for  personal  services,  29(3. 

must  be  of  special  or  unique  character,  296. 


444  INDEX. 

[The  figures  reier  to  pages.] 

INJUNCTION-Confd, 

to  restrain  commission  of  torts,  297. 

plaintiff  must  establish  right  asserted  by  him,  298. 
violation  of  right  by  defendant,  298. 
probability  or  danger  of  violation,  298. 
classes  of  torts  enjoined,  299. 
Injuries  to  real  property,  299. 
waste,  299. 

definition  of,  299. 
by  mortgagor,  299. 
equitable  waste,  300. 
trespass,  300. 

irreparable  injury,  300. 
continuous  trespasses,  300. 
nuisances,  301. 
definition,  301. 

distinction  between  public  and  private  nuisances,  301. 
injunction  against  public  nuisance,  302. 
injunction  against  private  nuisance,  302. 
nuisances  to  dwelling  houses  and  houses  of  business,  302. 
test  of  jurisdiction,  302. 
corruption  or  pollution  of  air,  303. 
noisy  trades,  303. 
nuisances  affecting  right  to  lateral  and  subjacent  support  of 

soil,  303. 
nuisances  affecting  water  rights,  304. 
rights  respecting  quantity,  304. 
rights  respecting  quality,  305. 
nuisances  to  easements  of  light  and  access,  306. 
protection  of  patents,  copyrights,  trade-marks,  and  literary  property, 
306. 
basis  of  jurisdiction,  306. 
patents,  307. 
copyrights,  307. 

unpublished  works  of  literature,  science,  and  art,  308. 
letters,  308. 
lectures,  308. 
trade-marks,  309. 

basis  of  jurisdiction,  309. 
who  entitled  to  protection,  309. 
statutory  regulations,  309. 
protection  of  other  than  property  rights,  310. 
libels  and  slanders,  310. 


INDEX.  445 

[The  figures  refer  to  pages.J 

INJUNCTION— Cont'd, 

intimidating  publications,  311. 
mental  anguish  as  ground  for  jurisdiction,  311. 
to  protect  trusts  and  equitable  rights,  312. 

trustees  using  legal  powers  to  violate  trust,  312. 

partners  doing  acts  inconsistent  with  partnership  obligntions,  312. 

officers  of  corporation  violating  rights  of  stockholders,  312. 

public  officers,  313. 

transfer  of  negotiable  paper,  313. 

IN  PARI  DELICTO, 

he  who  comes  into  equity  must  come  with  clean  hands,  42. 

INSANITY, 

contracts  with  lunatic,  143. 

INSOLVENCY, 

title  of  assignee,  99. 

INSURANCE, 

contracts  for,  specific  performance,  270. 

INTERLOCUTORY   INJUNCTION, 
nature  of,  289. 

INTERPLEADER, 
definition,  32G. 

preventing  multiplicity  of  actions,  ground  of  jurisdiction,  32G. 
legal  and  equitable  claims,  320. 
identity  of  subject-matter  claimed,  327. 
priority  of  title  between  claimants,  328. 
complainant  must  have  no  interest  in  subject-matter.  328. 
complainant  must  have  incurred  no  liability  to  either  party,  329. 

INTOXICATION, 

contracts  with  intoxicated  persons,  144. 

IRREPARABLE  INJURY, 

as  ground  for  injunction,  290. 

J 

JUDGMENTS, 

at  law,  relief  in  equity,  117. 
injunction  against  enforcement,  292. 

JURISDICTION, 

adequate  remedy  at  law,  10. 
erroneous  assumption  of,  collateral  attack,  11. 
none  over  crimes  and  criminal  prosecutions,  8. 
not  divested  by  enlargement  of  legal  remedy,  11. 


446  INDEX. 

[The  figures  refer  to  pages.] 

JURISDICTION— Cont'd, 

over  subject-matter  beyond  territorial  jurisdiction,  29. 
preventing  multiplicity  of  suits,  15. 
retaining,  to  award  complete  relief,  13. 

L 

LACHES, 

equity  aids  the  vigilant,  not  those  who  slumber  on  their  rights,  42. 
as  defense  to  suit  for  specific  performance,  275. 

LATERAL  SUPPORT, 

protection  by  injunction,  303. 

LAW, 

mistake  of,  118. 

LEASE, 

with  privilege  of  purchase,  conversion,  71. 

LECTURES, 

injunction  against  unauthorized  publication,  308. 

LETTERS, 

injunction  against  unauthorized  publication,  308. 

LIBEL  AND  SLANDER, 

injunction  against  publication,  310. 
LIENS, 

equitable,  definition,  227. 

distinguished  from  common-law  lien,  227. 
equitable  mortgages,  228. 

agreement  to  give  mortgage,  228. 

imperfect  execution  of  mortgage,  229. 

deposit  of  title  deeds,  229. 

mortgage  of  equitable  estate,  229. 
liens  based  on  considerations  of  justice,  230. 

improvements  by  occupant  of  land,  230. 

repairs  by  cotenant,  230. 

improvements  by  tenant  for  life,  231. 
vendor's  lien,  231. 

on  what  principles  founded,  231. 

how  far  recognized  in  United  States,  232. 

fixed  and  certain  debt,  233. 

against  whom  enforced,  233. 

assignment  of,  233. 

waiver  of,  234. 

express  reservation  of  lien,  234. 

under  contract  of  sale,  235. 


INDEX.  447 

[The  figures  refer  to  pages.] 

LIENS— Cont'd, 

vendee's  lien,  236. 

charges  of  debts  and  legacies,  23G. 

exoneration  of  testator's  personal  property,  237. 

remedies  of  creditor  or  legatee,  237. 
mortgage  as,  212,  214. 
on  specific  property,  superior  to  lien  general  in  its  scope,  100. 

LIMITATIONS,  STATUTE  OF. 

equity  aids  the  vigilant,  not  those  who  slumber  on  their  rights,  43. 

LIQUIDATED  DAMAGES, 
or  penalty,  108. 

LIS  PENDENS, 

purchase  pendente  lite,  93. 
see,  also,  "Notice." 
LITERARY  PROPERTY, 

protection  by  injunction,  308. 
LOST  INSTRUMENTS, 

equity  jurisdiction,  12. 

relief  on  ground  of  accident,  117. 

LUNATICS, 

election  by,  57. 

contracts  with,  143. 

M 
MANDATORY    INJUNCTION, 

what  is,  288. 
MARRIAGE, 

as  part  performance  of  contract,  282. 

conveyance  of  property  in  contemplation  of.  fraud,  1G0. 

marriage  settlement,  interpretation  of,  183. 

MARRIED  WOMEN, 
acting  as  trustees,  171. 
election  by,  57. 
wife's  equity  to  settlement,  37. 

MARSHALING. 

equality  is  equity,  32. 

when  right  exists,  256. 

origin  of  right,  256. 

as  between  junior  and  senior  mortgagees,  257. 

as  between  individual  and  firm  creditors,  257. 

as  between  legatees  and  devisees,  257. 

limitations  on  rule,  257. 


448  INDEX. 

[The  figures  refer  to  pages.] 

MASTER  AND  SERVANT, 

contract  of  hiring  and  service,  injunction  against  breach,  296. 
specific  performance,  208. 

MAXIMS, 

definition  and  classification,  19. 

enabling  maxims,  19. 

restrictive  maxims,  20. 
equity  will  not  suffer  a  right  to  be  without  a  remedy,  20. 

right  must  not  be  merely  a  moral  right,  nor  contravene  statutes  or 
public  policy,  20. 

inadequacy  of  legal  remedy  in  particular  instance,  20. 
equity  regards  substance  rather  than  form,  23. 

in  case  of  penalties  and  forfeitures,  23. 

In  case  of  mortgages,  24. 

in  case  of  suretyship,  24. 

in  case  of  fraud,  25. 
equity  looks  on  that  as  done  which  ought  to  be  done.  25. 

does  not  apply  as  against  third  persons,  27. 

does  not  apply  in  favor  of  one  having  no  right  to  regard  thing  as 
done,  27. 

in  cases  of  conversion,  26,  07. 

as  between  vendor  and  vendee.  20. 

as  between  mortgagor  and  mort^ajree.  26. 

in  cases  of  fraud,  20. 
equity  imputes  an  intention  to  fulfill  an  obligation.  27. 

application  to  doctrine  of  performance,  27,  00. 

application  to  case  of  trustees,  28. 

satisfaction  of  debts  by  legacies,  60. 
equity  acts  in  personam,  and  not  in  rem,  0,  28. 

statutory  qualification,  2S. 
equity  acts  specifically,  and  not  by  way  of  compensation.  31. 
equality  is  equity,  32. 

leaning  against  joint  tenancies  and  joint  obligations,  32. 

application  to  doctrines  of  contribution  and  marshaling,  32. 

liens  not  divested,  32. 
equity  follows  the  law,  22,  33. 

as  regards  legal  estates,  33. 

as  regards  equitable  estates.  33. 

rules  of  evidence,  34. 

construction  of  contracts,  34. 
where  the  equities  are  equal,  the  law  will  prevail,  35,  103. 

tacking  of  mortgages,  35. 


INDEX.  449 

[The  figures  rpfer  to  pages.] 

MAXIMS— Cont'd, 

where  there  are  equal  equities,  the  first  in  order  of  time  shall  prevail, 
36,  105. 

priority  between  unrecorded  mortgages,  36. 
he  who  seeks  equity  must  do  equity,  36. 

wife's  equity  to  a  settlement,  37. 

cancellation  of  usurious  contract,  37. 

equitable  estoppel,  37. 

does  not  apply  to  matters  not  in  litigation,  38. 

does  not  apply  to  equity  in  favor  of  third  person,  38. 

foundation  for  doctrine  of  election,  50. 
he  who  comes  into  equity  must  come  with  clean  hands,  38. 

oppressive  and  unconscientious  conduct,  39. 

fraudulent  conduct,  40,  140. 

illegal  transactions,  40. 

applies  only  to  transaction  in  litigation,  41. 

does  not  apply  where  parties  are  not  in  pari  delicto,  42. 
equity  aids  the  vigilant,  not  those  who  slumber  on  their  rights,  42. 

laches,.  42. 

statute  of  limitations,  43. 

does  not  apply  to  persons  under  disability,  44. 

does  not  apply  to  sovereign  power,  44. 

MENTAL  ANGUISH, 

as  ground  for  injunction,  311. 

MENTAL  WEAKNESS, 
effect  on  contracts,  144. 

MISREPRESENTATIONS, 

see  "Estoppel";    "Fraud." 

MISTAKE, 

definition,  117, 

may  be  of  law  or  of  fact,  118. 

of  law,  118. 

no  ground  for  relief,  118. 
exceptions,   119. 

in  case  of  fraud,  imposition,  or  misrepresentation.  120. 
where  no  contract  is  really  formed,  120. 
antecedent  private  legal  rights  and  liabilities,  121. 
compromises  of  doubtful  claims,  121. 
of  fact,  122. 

fundamental  mistake  of  fact,  122. 
as  to  nature  of  transaction,  123. 
as  to  person  with  whom  contract  is  made,  123. 
eq.jur.— 29 


450  INDEX. 

[The  figures  refer  to  pages.] 

MISTAKE— Cont'd, 

as  to  subject-matter,  123. 
nonexistence  of,   123. 

as  to  nature  or  fundamental  qualities,  124. 
unilateral  mistake  as  to  subject-matter,  125. 
fact  material  to  transaction,  125. 
negligence  of  mistaken  party,  126. 
obligation  to  disclose  knowledge,  126. 
mistake  of  expression,  127. 

apparent  on  face  of  instrument,  128. 
parol  evidence  to  prove,  128. 
does  not  apply  to  mistakes  in  wills,  128. 
In  execution  of  powers,  130. 

in  settlement  of  accounts  and  execution  of  release,  130. 
as  defense  to  suit  for  specific  performance,  276. 
as  ground  for  reformation,  314. 

MORTGAGES, 

equity  looks  on  that  as  done  which  ought  to  be  done,  26. 
equity  regards  substance  rather  than  form,  24. 
how  regarded  in  equity,  212. 

creation  of  equity  of  redemption,  213. 
once  a  mortgage,  always  a  mortgage,  213. 
how  regarded  in  United  States,  214. 
two  systems,  214. 

in  some  states  regarded  merely  as  a  lien,  214. 
in  others  as  vesting  mortgagee  with  legal  title,  214. 
absolute  deed  as  mortgage,  216. 

parol  evidence,  216. 
conditional  sale  or  mortgage,  217. 

intention  of  parties  is  the  criterion.  217. 
assignment  of  mortgage,  218. 

of  debt,  carries  mortgage  with  it,  218. 
transfer  of  mortgaged  land,  210. 
subject  to  mortgage,  219. 
assumption  of  mortgage  by  grantee,  219. 

grantee  is  principal  and  mortgagee  is  surety,  219. 
enforcement  against  grantee,  220. 
liability  in  inverse  order  of  alienation,  225. 
foreclosure,  220. 

strict  foreclosure,  221. 
by  action,  221. 
objects  of,  221. 
title  of  purchaser,  222. 


INDEX.  451 

[The  figures  refer  to  pages.] 

MORTGAGES-Confd, 

distribution  of  surplus,  222. 

personal  judgment  for  deficiency,  222. 

by  sale  under  power,  222. 

concurrent  remedies,  223. 
action  for  debt,  223. 
redemption,  223. 

meaning  of  term,  223. 

who  may  redeem,  224. 

from  debt  in  its  entirety,  224. 

contribution  and  exoneration,  225. 
equitable,  what  are,  228. 

marshaling,  between  junior  and  senior  mortgagees,  237. 
receiver  of  premises,  333. 

subrogation  of  junior  mortgagee  to  rights  of  senior  mortgagee.  255. 
tacking,  35. 
trust  deeds,  185. 
unrecorded  mortgage,  priority  over  subsequent  judgment,  100. 

no  priority  over  purchaser  at  execution  sale,  100. 
waste  by  mortgagor,  injunction,  299. 

see,  also,  "Chattel  Mortgages." 

MULTIPLICITY  OF  SUITS, 

equity  retains  jurisdiction  to  award  complete  relief,  13. 
jurisdiction  to  prevent.  15. 

suits  by  or  against  numerous  persons,  16. 

reiterated  litigation  between  same  individuals,  17. 
repeated  trespasses,  300. 
as  ground  for  jurisdiction  in  interpleader  suits,  329. 

MUTUALITY  OP  OBLIGATION, 

want  of,  as  defense  to  suit  for  specific  performance,  273. 

N 

NE  EXEAT, 

nature  of  writ,  325. 
when  issued,  325. 

NEGLIGENCE, 

of  mistaken  party,  126. 

NEGOTIABLE    INSTRUMENTS, 
injunction  against  transfer,  313. 

NOTICE, 

definition,   80. 


452  INDEX- 

[.The  figures  refer  to  pages.] 

NOTICE— Cont'd, 

distinction  between  notice  and  knowledge,  81. 
classification.  81. 
actual  notice,  SI. 

express  or  implied,  81. 
vague  reports,  83. 
constructive  notice,  83. 
notice  of  fact  is  notice  of  cause,  84. 
visible  appearance  of  property,  84. 
possession  of  title  deeds,  85. 
possession  as  notice,  S5. 

possession  of  vendor,  86. 
recitals  in  title  papers,  87. 
notice  to  agent,  88. 

when  notice  must  come  to  agent,  89. 
notice  by  record,  90. 

object  of  recording  acts,  90. 
compliance  with  statutory  requirements,  90. 
to  whom  record  is  notice,  91. 
notice  of  unrecorded  deed,  effect,  92. 
lis  pendens  as  notice,  93. 

litigation  must  involve  specific  property,  94. 
description  of  property  in  pleading,  94. 
jurisdiction  of  court,  94. 
duration  of  suit,  94. 
doctrine  applies  only  to  parties,  95. 
statutory  enactments,  95. 
purchaser  with  notice  of  an  equity,  takes  subject  to  it,  102. 

notice  of  restrictive  covenant  in  deed,  103. 
vendee  in  quitclaim  deed,  97. 

bona  fide  purchaser  from  purchaser  with  notice,  98. 
of  assignment,  244. 

NUISANCES, 

injunction  against,  301. 

retaining  jurisdiction  to  award  complete  relief,  14. 

o 

ORDER, 

on  specific  fund,  as  an  assignment,  243. 

OWELTY, 

of  partition,  203. 


INDEX.  453 

TThe  figures  refer  to  pages.] 

P 

PARENT  AND  CHILD, 

contracts  between,  150. 

double  provision  for  child  by  parent  or  person  in  loco  parentis,  81. 
who  is  person  in  loco  parentis,  63. 
PARTIES, 

to  trust,  169. 

to  contract,  incapacity  as  ground  for  refusing  specific  performance,  271. 
PARTITION, 
definition,  259. 
voluntary  partition,  259. 
compulsory  partition  at  common  law,  259. 
equity  jurisdiction,  260. 
who  entitled  to  partition,  260. 

possession  necessary,  260. 
what  property  subject  to,  262. 

sale  and  division  of  proceeds,  262. 

owelty,  263. 

personal  property,  263. 

PARTNERSHIP, 

contract  to  enter  into,  269. 

contribution  between  partners,  253. 

injunction  against  violation  of  partnership  agreement,  312, 

marshaling  between  firm  and  individual  creditors,  257. 

receiver  of  property  of,  332. 

PART  PERFORMANCE, 

to  take  contract  out  of  statute  of  frauds,  280. 
PASSIVE  TRUSTS, 

cestui  que  trust's  estate,  184. 

PATENTS  FOR  INVENTIONS, 

contracts  concerning,  specific  performance,  267. 
injunction  against  infringement,  307. 
PAYMENTS, 

application  of,  249. 
by  debtor,  249. 
by  creditor,  250. 
by  the  law,  251. 

PENALTIES  AND  FORFEITURES, 

equity  regards  substance  rather  than  form,  23. 
relief  against  in  equity,  107. 


-154  INDEX. 

[The  figures  refer  to  pages.] 

PENALTIES  AND  FORFEITURES— Cont'd, 

penalty  or  liquidated  damages,  108. 
use  of  terms  not  controlling,  108. 
larger  sum  to  secure  payment  of  smaller,  108. 

lump  sum  to  secure  performance  of  different   stipulations  some  of 
which  are  of  a  trilling  nature,  109. 
of  total  and  partial  failure  to  perform,  109. 
sum  to  secure  performance  of  contract  where   damages   cannot   be 

ascertained,  109. 
sum  to  secure  performance  of  stipulations  of  varying  importance  and: 
not  of  a  trifling  nature,  110. 
no  relief  against  statutory  penalties,  111. 
forfeiture  will  not  be  enforced  in  equity,  112. 
relief  in  case  of  accident,  118. 

PERFORMANCE, 

equity  imputes  intention  to  fulfill  obligation,  27. 
by  act  of  covenantor,  GO. 
by  operation  of  law,  GO. 

PERPETUATION  OF  TESTIMONY, 
suits  for,  when  permitted,  322. 
what  required  to  support  bill,  323. 
statutory  regulation,  323. 

PERPETUITIES, 

restraint  on  alienation  of  trust  estate,  181. 
in  charitable  trusts,  188. 

PLEDGE, 

distinguished  from  chattel  mortgage,  227. 
POSSESSION, 

as  notice,  85. 

as  part  performance,  281. 
POST  OBIT  BONDS, 

presumption  of  fraud,  142. 
POWERS, 

mistake  in  execution  of,  130. 

fraud  on,  illusory  appointment,  161. 

delegation  by  trustee,  202. 

PRECATORY  TRUSTS, 
what  are,  175. 

PRINCIPAL  AND  AGENT, 
contracts  between,  147. 
notice  to  agent,  SS. 


INDEX.  455 

[The  figures  refer  to  pages.] 

PRINCIPAL  AND  SURETY, 

application  of  maxim,  "equity  regards  substance  rather  than  form,"  24. 

contribution  between  sureties,  253. 

exoneration,  right  of  surety  as  against  principal,  254. 

relation  between  grantee  of  mortgaged  land  and  mortgagor,  219. 

subrogation  of  surety  to  rights  of  creditor,  255. 

PRIORITIES, 

unequal  equities,  99. 

equity  founded  on  valuable  consideration,  superior  to  one  founded  on 
voluntary  transfer,  99. 
insolvency  and  fraudulent  conveyances,  99. 
equity  to  specific  thing  superior  to  a  general  equity,  100. 

unrecorded  mortgage  entitled  to  priority  over  judgment,  100. 
unrecorded   mortgage  not  entitled  to  priority  over   purchaser  at 
judicial  sale,  100. 
equity  of  person  misled  is  superior  to  his  who  has  misled  him,  101. 
application  to  disputes  between  owners  of  equitable  interests,  102. 
application  to  disputes  between  owner  of  legal  title  and  owner  of 
equitable  interest,  102. 
purchaser  with  notice  of  an  equity  takes  subject  to  it,  102. 
notice  of  restrictive  covenants  in  deed,  103. 
equal  equities,  103. 

legal  title  prevails,  103. 

time  of  acquiring  legal  title,  104. 

cancellation  not  granted  as  against  purchaser  of  legal  title  with- 
out notice,  104. 
equity  prior  in  time  prevails,  105. 

defense  of  bona  fide  purchaser  does  not  avail  against  holder  of  legal 
title,  106. 
between  assignees,  245. 

PROPERTY   RIGHTS, 

equity  jurisdiction  limited  to  protection  of,  310. 

PUBLIC  OFFICERS, 

injunctions  against  violation  of  duties  by,  313. 

PUBLIC  POLICY, 

assignments  void  on  grounds  of.  241. 


Q 

QUIA  TIMET, 

see  "Cloud  on  Title." 


156  INDEX- 

[The  figures  refer  tc  pages.] 

QUIETING  TITLE, 
see  "Cloud  on  Title." 

QUITCLAIM  DEED, 
rights  of  vendee,  97. 

R 

RAILROAD  COMPANIES, 
receivers  of,  333. 

RECEIVERS, 

definition  of,  330. 

object  of  receivership,  330. 

interference  with  possession  of,  330. 

appointment,  330. 

to  protect  estate  of  person  under  disability,  332. 

of  partnership,  332. 

as  between  tenants  in  common,  332. 

of  trust  estate,  333. 

of  mortgaged  premises,  333. 

of  railroads,  333. 

powers  of  receivers,  333. 

receivers'  certificates,  21,  334. 
on  dissolution  of  corporation.  334. 
at  suit  of  judgment  creditor,  335. 

RECORD, 

notice  by,  90. 

REDEMPTION, 
see  "Mortgages." 

REFORMATION, 

basis  of  jurisdiction,  314. 

mistake  as  ground  for,  314. 

degree  of  proof  required,  315. 

retaining  jurisdiction  to  award  complete  relief,  14. 

RELEASE, 

execution  under  mistake,  130. 

REMEDIES, 

adequate  remedy  at  law,  10,  10,  116,  290. 
enlargement  of  legal,  does  not  dhest  equity  jurisdiction,  11. 
see  "Accounting";   "Injunction";  "Specific  Performance,"  etc 

RESCISSION, 

see  "Fraud";   "Cancellation." 


INDEX.  457 

[The  figures  refer  to  pages.] 

RESTRAINT  OF  TRADE, 

contracts  in,  injunction  against  violation,  293. 

RESULTING  TRUSTS, 
see  "Trusts." 

S 
SALE, 

contracts  for  sale  of  chattels,  specific  performance,  266. 

SATISFACTION, 
definition,  58. 

parol  evidence  to  show  intention,  5S. 
where  gift  rests  in  parol,  58. 
where  gift  is  evidenced  by  writing,  58. 
classification,  59. 

satisfaction  of  debt  by  legacy,  GO. 

double  provision  for  child  by  parent  or  person  in  loco  parentis,  61. 
ademption,  61. 

who  is  person  in  loco  parentis,  63. 
presumption  in  favor  of  ademption,  64 

covenant  to  make  settlement  followed  by  testamentary  provision, 
65. 

SAVINGS  BANKS. 

deposits  in  trust,  177. 

SHELLEY'S  CASE, 

rule  in,  interpretation  of  trusts,  183. 

SILENCE, 

when  failure  to  disclose  knowledge  is  fraud,  137. 
mistake  caused  by,  126. 

SPECIFIC  PERFORMANCE, 
definition,  265. 

inadequacy  of  damages  for  breach  of  contract,  test  of  equity  jurisdiction, 
265. 
contracts  relating  to  real  estate,  266. 
contracts  for  sale  of  chattels,  266. 
unique  chattels,  266. 

corporate  stocks  and  governmental  securities,  266. 
patents  for  inventions,  267. 
contracts  relating  to  personal  acts,  267. 
hiring  and  service,  267. 
personal  acts  relating  to  land,  268. 
continuous  duties  extending  over  a  long  period  of  time,  268. 


458  INDEX. 

[The  figures  refer  to  pages.] 

SPECIFIC  PERFORMANCE— Cont'd, 
partnership  contracts,  2G9. 
arbitration  contracts,  209. 
awards  of  arbitrators,  209. 
contracts  to  lend  or  borrow  money,  270. 
Insurance  contacts,  270. 
grounds  for  refusing  relief,  270. 

defenses  having  same  effect  at  law  and  in  equity,  271. 
incapacity  of  parties,  271. 
nonconclusion  of  contract,  271. 
illegality  of  contract,  272. 
defeuses  confined  to  specific  performance  actions,  272. 
foundation  of,  272. 
want  of  mutuality  of  obligation,  273. 
optional  contracts,  273. 
contracts  not  signed  by  plaintiff,  273. 
want  of  fairness,  273. 
hardship,  274. 

inadequacy  of  consideration,  274. 
defenses  producing  different  result  than  in  common-law  action,  275. 
lapse  of  time,  275. 
fraud  and  mistake,  270. 

uncertainty  and  indefiniteness  of  contract,  2'<6. 
want  of  good  title,  277. 
default  on  plaintiff's  part,  278. 

time  not  of  essence  of  contract,  278. 
exceptions,  279. 
statute  of  frauds,  280. 
part  performance,  280. 

acts  must  refer  to  contract,  281. 
possession  and  improvements,  281. 
auxiliary  and  introductory  acts,  282. 
acts  capable  of  being  undone,  282. 
payment  of  purchase  money,  282. 
marriage,  282. 

applies  only  to  contracts  relating  to  land,  283. 
fraud  preventing  execution  of  written  contract,  283. 
failure  to  plead  statute,  283. 
specific  performance  with  a  variation,  283. 
compensation  for  defects,  283. 
variance  as  to  time,  284. 
variation  as  to  subject-matter,  285. 


INDEX.  45 V 

[The  figures  refer  to  pages.] 

SPECIFIC  PERFORMANCE— Cont'd, 
at  suit  of  vendor,  2S5. 
as  to  quantity,  2S5. 
as  to  title,  285. 
at  suit  of  purchaser,  2S5. 
total  failure  of  title,  286. 
parol  evidence  as  to  variation,  2S6. 
in  favor  of  defendant,  287. 
in  favor  of  plaintiff,  287. 
by  way  of  injunction,  294. 
retaining  jurisdiction  to  award  complete  relief,  14. 

STATUTE  OF  FRAUDS, 
see   "Frauds,   Statute  of." 

SUBROGATION, 

when  right  exists,  254. 

of  surety  to  rights  of  creditor,  255. 

of  junior  mortgagee  to  rights  of  senior  mortgagee,  255. 

of  insurance  company  to  rights  of  iusured,  255. 

volunteer  not  entitled  to,  255. 

person  guilty  of  inequitable  conduct,  256. 

T 

TACKING, 

of  mortgages,  35. 

TENANCY  IN  COMMON, 
lien  for  improvements.  230. 
receiver  of  property  of,  332. 
see,  also,  "Partition." 

TESTIMONY, 

bill  to  perpetuate,  322. 

see,  also,  "Witness,  Examination  de  Bene  Esse." 

TIME, 

not  of  essence  of  contract  in  equity,  278. 

variance  as  to,  compensation  on  granting  specific  performance  of  con- 
tract, 284. 

TITLE, 

removing  cloud  from,  316. 

variance  as  to,  granting  specific  performance.  285. 

total  failure  of,  retaining  suit  to  award  compensation,  286. 

want  of,  as  defense  to  suit  for  specific  performance,  278. 

possession  of  title  deeds,  notice  of  mortgage,  85. 


INDEX. 
4b0 

[The  figures  refer  to  pages.] 

TOUTS,  OQ„ 

injunction  against  commission  of,  297. 

TRADE-MARKS, 

injunction  against  Infringement,  309. 

TRESPASS, 

injunction  against,  300. 

"SJU  an  intents  to  MM.  obligation,  2a 
who  may  be,  170. 
the  sovereign,  170. 
corporations,   170. 
married  women,  171. 
infants,  171. 
aliens,  171. 
insolvents,  171. 

equity  never  wants  a  trustee,  171. 
duties  and  liabilities,  200. 

carrying  out  directions  in  trust  instrument.  200. 
getting  in  outstanding  trust  property,   200. 
custody  and  care  of  trust  property,  201. 
duty  to  exercise  ordinary  care,  201. 
delegation  of  powers,  202. 
Investments,  203. 
liability  for  acts  of  cotrustee,  204. 

liability  on  joint  receipt  for  trust  moneys,  205. 
compensation,  20G. 

personal  liability  to  cestui  que  trust,  209. 
removal,  209. 
accidental  loss  of  trust  estate,  relief  against,  117. 
contracts  with  cestui  que  trust,  146. 

between  persons  in  fiduciary  relations,  14o. 

TRUSTS, 

definition,  163. 
historical  development,  164. 
origin  of  uses,  164. 
reasons  for  perpetuation,  164. 
statute  of  uses.  166. 
nullification  of  statute,  167. 
classification,  168. 
express  private  trusts,  169. 
definition,  169. 


INDEX.  461 

[The  figures  refer  to  pages.] 

TRUSTS— Cont'd, 
parties,  1G9. 

the  settlor,  169. 

the  trustee,  who  may  be,  170. 
the  cestui  que  trust,  who  may  be,  17L 
property  subject  to  trust,  172. 
creation  of  trust,  172. 

effect  of  statute  of  frauds,  173. 
personal  property,  173. 
real  property,  173. 
effect  of  statute  of  wills,  173. 
words  essential  to  create  trust,  174. 

precatory  trusts,  175. 
consideration  to  support  trust,  176. 
valuable  consideration,  176. 
voluntary  settlements,  176. 

perfect  or  imperfect  creation  of  trust.  176. 

where  settlor  converts  himself  into  a  trustee,  177. 
savings  bank  deposits,  177. 
imperfect  gifts,  178. 
where  stranger  is  appointed  trustee,  179. 
trust  in  legal  interest,  179. 
trust  in  equitable  interest,  179. 
object  proposed  by  the  trust,  179. 
illegal  objects,  ISO. 

placing  property  beyond  reach  of  creditors  of  cestui  que  trust,  180. 
restraining  alienation,  181. 
accumulation  of  rents  and  profits,  1S1. 

legislation  restricting  objects  for  which  trusts  may  be  created,  181. 
interpretation  of  trusts,  182. 
executed  trusts,  182. 
executory  trusts,  1S2. 
marriage  settlements,  1S3. 
rule  in  Shelley's  Case,  183. 
nature  of  cestui  que  trust's  estate,  184. 
passive  trusts,  184. 
active  trusts,  1S5. 

assignment  for  benefit  of  creditors,  1S5. 
trust  deed,  185. 
public  or  charitable  trusts,  186. 
definition,  186. 
enumeration  of  objects  recognized  as  charitable,  187. 


462  INDEX. 

[The  figures  refer  to  pages.] 

TRUSTS-Cont'd, 

distinction  between  private  and  charitable  trusts,  188. 
uncertainty  of  beneficiaries,  188. 
uncertainty  of  trustee,  1S8. 
uncertainty  of  objects,  188. 
perpetuities,  188. 
doctrine  of  cy  pres,  189. 
charitable  trusts  in  United  States,  190. 
resulting  trusts,  191. 
definition,  191. 
classification,  191. 

parting  with  legal  and  retaining  equitable  interest,  191. 
where  intention  is  expressed,  192. 

illegal  trusts,  192. 
where  intention  is  presumed,  193. 

trusts  not  exhausting  whole  estate,  193. 
conveyances  without  consideration,  193. 
parol  evidence  as  to  intention,  194. 
%        purchase  in  name  of  third  person,  194. 
purchase  in  name  of  stranger,  194. 
joint  purchase,  195. 
parol  evidence,  195. 

statutory  abolition  in  some  states,  196. 
purchase  in  name  of  near  relative,  197. 
constructive  trusts,  198. 
definition,  198. 
fraud  as  basis  of,  198. 
remedies  of  cestui  que  trust,  207. 
following  trust  estate,  207. 
into  hands  of  stranger,  208. 
in  changed  form,  208. 
personal  remedies,  209. 
removal  of  trustee,  209. 
receiver  of  trust  estate,  333. 
protection  by  injunction,  312. 


USES, 

see  "Trusts." 


u 


USURY. 

cancellation  of  contract  for.  he  who  seeks  equity  must  do  equity,  37. 


INDEX.  463 

[The  figures  refer  to  pages.] 


VENDOR  AND  PURCHASER, 

contract  for  sale  of  land,  conversion,  69. 

equity  looks  on  that  as  done  which  ought  to  be  done,  26. 
transfer  of  mortgaged  land,  219. 
vendor's  lien,  231. 
vendee's  lien,  236. 

see,  also,  "Bona  Fide  Purchaser";    "Notice":    "Priorities";    "Specific 
Performance." 

VOLUNTARY  CONVEYANCES, 

between  persons  in  fiduciary  relations,  151. 

when  voluntary  settlement  upheld  in  the  form  of  a  trust,  176. 


W 

WASTE, 

Injunction  against  commission  of,  299. 

WATER  RIGHTS, 

protection  by  injunction,  304. 

WILLS, 

charges  of  debts  and  legacies  on  real  estate.  230. 
no  relief  on  ground  of  mistake,  12S. 
marshaling  as  between  devisees  and  legatees,  257. 
statute  of,  effect  on  trusts,  173. 

see,  also,  "Conversion";  "Election";   "Satisfaction/ 

WITNESS,  EXAMINATION  DE  BENE  ESSE, 
when  right  exists,  324. 


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THIRD    EDITION. 


TABLE    OF   CONTENTS. 


Chapter  I. 

OF  NEGOTIABILITY  SO  FAR  AS  IT  RE- 
LATES TO  BILLS  AND  NOTES  :  Cover- 
ing the  origin,  purpose,  and  indicia  of  nego- 
tiability, distinction  between  negotiability 
and  assignability,  and  payment  by  negotia- 
ble instrument. 

Chapter  II. 

OF  NEGOTIABLE  BILLS  AND  NOTES, 
AND  THEIR  FORMAL  AND  ESSEN- 
TIAL REQUISITES  :  Covering  definition, 
form,  and  essentials,  the  order,  the  promise, 
specification  of  parties,  capacity  of  parties, 
delivery,  date,  value  received,  and  days  of 
grace. 

Chapter   III. 

ACCEPTANCE  OF  BILLS  OF  EXCHANGE : 
Covering  the  various  kinds  of  acceptance, 
and  the  rules  relating  thereto. 

Chapter   IV. 

INDORSEMENT :  Defining  and  explaining  the 
various  kinds  of  indorsements,  and  showing 
their  requisites  and  effect. 

Chapter  V. 

OF  THE  NATURE  OF  THE  LIABILITIES 
OF  THE  PARTIES :  Covering  liability  of 
maker,  acceptor,  drawer,  indorser,  rights  and 
liabilities  of  accommodation  and  accommo- 
dated parties,  estoppel  and  warranties,  and 
damages  for  breach. 


Chapter  VT. 

TRANSFER :  Covering  definition,  validity,  and 
various  methods  of  transfer,  and  status  of 
overdue  paper. 


Chapter  VII. 

DEFENSES  AS  AGAINST  PURCHASER 
FOR  VALUE  WITHOUT  NOTICE :  Cov- 
ering the  subject  generally  and  fully. 


Chapter  VIII. 

THE  PURCHASER  FOR  VALUE  WITH- 
OUT NOTICE:  Explaining  who  is,  and 
discussing  consideration,  good  faith,  notice, 
overdue  paper,  presumption,  and  burden  of 
proof,  etc. 

Chapter  IX. 

OF  PRESENTMENT  AND  NOTICE  OF  DIS- 
HONOR :  Covering  presentment  for  accept- 
ance and  for  payment,  dishonor,  protest,  no- 
tice of  dishonor,  waiver,  etc 


CHECKS 
to  checks 


Chapter  X. 

Covering  generally  the  law  relating 


APPENDIX : 
Law. 


The     Negotiable     Instruments 


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j§)attf>6ooft  of  Criminal  &<xtt>f 

Author  of  a  "Handbook  of  the  Law  of  Contracts.0 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

DEFINITION  OF  CRIME :  The  nature  of  crime 
and  ground  of  punishment. 

CHAPTER  II. 

CRIMINAL  LAW :  How  the  criminal  law  is  pre- 
scribed; the  common  law:  statutes,  and  the 
powers  of  state  and  federal  legislatures. 

CHAPTER  III. 

CLASSIFICATION  OP  CRIMES:  As  treason,  fel- 
onies, misdemeanors,  etc. ;  merger  of  offenses. 

CHAPTER  IV. 

THE  MENTAL  ELEMENT  IN  CRIME:  Con- 
sidering the  will,  intention,  motive,  and  crim- 
inal intention  or  malice. 

CHAPTER  V. 

PERSONS  CAPABLE  OF  COMMUTING  CRIME: 
Covering  also  exemption  from  responsibility, 
and  discussing  infancy,  insanity,  drunkenness, 
ignorance  or  mistake  of  law  or  of  fact,  provo- 
cation, necessity  and  compulsion,  married  wo- 
men and  corporations. 

CHAPTER  VI. 

PARTIES  CONCERNED:  Covering  effect  of 
joining  in  criminal  purpose,  principles  in  first 
and  second  degrees,  accessories  before  and 
after  the  fact,  terms  "  aider  and  abettor  ■  and 
"  accomplice. " 

CHAPTER  VII. 

THE  OVERT  ACT:  Covering  also  attempts,  so- 
licitation and  conspiracy. 

CHAPTER  VIII. 

OFFENSES  AGAINST  THE  PERSON:  Cover- 
ing homicide,  murder,  and  manslaughter,  with 
consideration  of  the  different  degrees,  acci- 
dent, self-defense,  etc 

CHAPTER  IX. 

OFFENSES  AGAINST  THE  PERSON  (Contin- 
ued) :  Covering  abortion,  mayhem,  rape,  sod- 
omy, seduction,  assaults,  false  imprisonment, 
kidnapping,  abduction. 


CHAPTER  X. 

OFFENSES  AGAINST  THE  HABITATION: 
Covering  arson  and  burglary. 

CHAPTER  XI. 

OFFENSES  AGAINST  PROPERTY:  Covering 
larceny,  embezzlement,  cheating  at  common 
law  and  by  false  pretenses,  robbery,  receiving 
stolen  goods,  malicious  mischief,  forgery,  etc. 

CHAPTER  XII. 

OFFENSES  AGAINST  THE  PUBLIC  HEALTH, 
MORALS,  ETC. :  Covering  nuisances  In  gen- 
eral, bigamy,  polygamy,  adultery,  fornication, 
lewdness,  eta 

CHAPTER  XIIL 

OFFENSES  AGAINST  PUBLIC  JUSTICE  AND 
AUTHORITY:  Covering  barretry,  obstruct- 
ing justice,  embracery,  prison  breach,  mispri- 
sion of  fe'iony,  compounding  crime,  perjury, 
bribery,  misconduct  in  office,  eta 

CHAPTER  XIV. 

OFFENSES  AGAINST  THE  PUBLIC  PEACE: 
Covering  dueling,  unlawful  assembly,  riot, 
affray,  forcible  entry  and  detainer,  libels  on 
private  persons,  etc. 

CHAPTER  XV. 

OFFENSES  AGAINST  THE  GOVERNMENT: 
Covering  treason  and  misprision  of  treason. 

CHAPTER  XVI. 

OFFENSES  AGAINST  THE  LAW  OF  NA- 
TIONS:    As  piracy. 

CHAPTER  XVII. 

JURISDICTION:  Covering  territorial  limits  of 
states  and  United  States,  jurisdiction  as  deter- 
mined by  locality,  federal  courts  and  the  com- 
mon law,  jurisdiction  conferred  by  congress, 
persons  subject  to  our  laws,  eta 

CHAPTER  XVIII. 

FORMER  JEOPARDY:    In  general. 


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Author  of  a  "  Handbook  of  Criminal  Law." 


CHAPTER  I. 

CONTRACT  IN  GENERAL:  Covering  its  defi- 
nition, nature,  and  requisites,  and  discussing 
agreement,  obligation,  promise,  void,  voidable, 
and  unenforceable  agreements,  and  the  essen- 
tials of  contract,  etc. 

CHAPTER  n. 

OFFER  AND  ACCEPTANCE:  Covering  im- 
plied contracts,  necessity  for  communication 
and  acceptance,  character,  mode,  place,  time, 
and  effect  of  acceptance,  revocation,  and  lapse 
of  offer,  etc. 

CHAPTER  in. 

CLASSIFICATION  OF  CONTRACTS:  Cover- 
ing contracts  of  record  and  contracts  under 
seal,  and  their  characteristics. 

CHAPTER  IV. 

REQUIREMENT  OF  WRITING:  Covering  also 
statute  of  frauds,  and  discussing  promise  by 
executor,  promise  to  answer  for  another, 
agreements  in  consideration  of  marriage  and 
In  relation  to  land,  and  agreements  not  to  be 
performed  within  a  year,  sufficiency  of  memo- 
randum, etc. 

CHAPTER  V. 

CONSIDERATION :  Covering  the  necessity  for 
consideration,  its  adequacy,  reality,  and  legal- 
ity, failure  of  consideration,  etc. 

CHAPTER  VI. 

CAPACITY  OF  PARTIES:  Covering  political 
and  professional  status,  infants,  insane  and 
drunken  persons,  married  women,  and  corpo- 
ration*. 


CHAPTER  Vn. 

REALITY  OF  CONSENT:  Covering  mistake, 
misrepresentation,  fraud,  duress,  and  undue 
influence. 

CHAPTER  VIII. 

LEGALITY  OF  OBJECT:  Covering  unlawful 
agreements  in  general,  agreements  in  viola- 
tion of  positive  law  and  those  contrary  to  pub- 
lic policy,  effect  of  illegality,  conflict  of  laws, 
etc 

CHAPTER  IX. 

OPERATION  OF  CONTRACT:  Covering  the 
limits  of  the  contractual  relation,  assignment 
of  contracts,  whether  by  act  of  parties  or  by 
operation  of  law,  joint  and  several  contracts, 
etc 

CHAPTER  X. 

INTERPRETATION  OF  CONTRACT:  Cover- 
ing the  rules  relating  to  evidence,  proof  of 
document,  rules  of  construction,  penalties  and 
liquidated  damages,  etc. 

CHAPTER  XI. 

DISCHARGE  OF  CONTRACT:  Covering  dis- 
charge by  agreement,  by  performance,  by 
breach,  by  impossibility  of  performance,  by 
operation  of  law,  etc.,  and  remedies  on  breach 
of  contract. 

CHAPTER  XII. 

AGENCY:  Covering  the  creation  of  the  relation, 
its  effect  and  determination,  the  capacity, 
rights,  and  liabilities  of  the  parties,  etc 

CHAPTER  Xin. 

QUASI  CONTRACT:  Covering  obligations  cre- 
ated by  law  upon  which  an  action  ex  contractu 
will  lie  without  proof  of  contract  in  fact,  in- 
cluding judgments,  obligations  imposed  by 
statute,  acts  of  parties,  etc. 


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SECOND  EDITION. 


TABLE   OF  CONTENTS. 


Chapter  I. 

FORMS  OP  ACTION :  Covering  the  nature  and 
classification  of  actions,  real,  personal,  and 
mixed  actions,  assumpsit,  special  and  general, 
debt,  covenant,  account  or  account  rendered. 

Chapter   II. 

FORMS  OF  ACTION  (Continued):  Covering 
trespass,  trover,  case,  detinue,  replevin,  eject- 
ment, writ  of  entry,  forcible  entry  and  detain- 
er, etc. 

Chapter  III. 

THE  PARTIES  TO  ACTIONS:  Covering  actions 
in  form  ex  contractu  and  ex  delicto,  and  the 
consequences  of  misjoinder  or  nonjoinder  of 
parties  plaintiff  or  defendant. 

Chapter  IV. 

THE  PROCEEDINGS  IN  AN  ACTION:  Cover- 
ing process,  the  summons,  writ  of  attachment, 
appearance,  the  declaration,  demurrer,  and  va- 
rious pleas,  amendments,  etc.,  the  verdict,  and 
proceedings  after  the  verdict,  the  judgment, 
and  proceedings  thereafter  to  the  writ  of  exe- 
cution. 

Chapter  V. 

THE  DECLARATION:  Statement  of  cause  of 
action  In  general;  form  of  declaration;  es- 
sential averments  of  declaration  in  special  as- 
sumpsit or  on  common  counts,  in  debt,  cove- 
nant, account,  case,  detinue,  trover,  trespass, 
replevin,  ejectment,  and  trespass  for  mesne 
profits  after  ejectment. 

Chapter  VI. 

THE  PRODUCTION  OF  THE  ISSUE:  Discuss- 
ing the  rules,  and  covering  the  demurrer,  the 
pleadings,  the  traverse,  forms  of  the  general 
issue  and  of  the  special  traverse,  protesta- 
tions, exceptions,  issues  in  fact  and  law,  etc. 


Chapter  VH. 

MATERIALITY  IN  PLEADING:    Covering  tb« 
general  rule,  variance,  limitation  of  traverse, 


etc. 


Chapter  VIII. 


SINGLENESS  OR  UNITY  IN  PLEADING:  Cov- 
ering the  rules  in  general,  duplicity,  Immate- 
rial matter,  inducement,  protestation,  conse- 
quences of  duplicity  and  of  misjoinder,  plea 
and  demurrer,  etc. 

Chapter   IX. 

CERTAINTY  IN  PLEADING:  Covering  the 
venue,  time,  quantity,  quality,  and  value, 
names  of  persons,  showing  title  and  author- 
ity, with  subordinate  rules,  and  special  re- 
quirements in  different  stages. 

Chapter  X. 

CONSISTENCY  AND  SIMPLICITY  IN  PLEAD- 
ING :  Covering  insensibility,  repugnancy,  am- 
biguity, argumentative  pleadings,  pleadings 
in  alternative,  positive  statements,  legal  effect, 
conformance  to  precedent,  commencement  and 
conclusion. 

Chapter   XL 

DIRECTNESS  AND  BREVITY  IN  PLEADING: 

Covering  the  rules  generally,  departure,  pleas 
amounting  to  general  issue,  surplusage,  eta 

Chapter  XII. 

MISCELLANEOUS  RULES:  Covering  con- 
formance to  process,  alleging  damages  and 
production  of  suit,  order  of  pleading,  defense, 
plea  in  abatement,  dilatory  pleas,  etc. 

APPENDIX:    Forms. 


This  book  embodies  such  of  the  rules  and  principles  of  Common-Law  Pleading  as  are  stfll 
recognized  and  applied  in  this  country.  A  knowledge  of  the  common-law  system  is  of  advantage,  it 
indeed,  it  is  not  essential,  to  a  thorough  understanding  of  both  code  and  equity  pleading. 

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TABLE    OF    CONTENTS. 


Author  of  Black's  Law  Dictionary,  Treatises 
on  Judgments,  Tax  Titles,  etc* 


Chapter  I. 

DEFINITIONS  AND  GENERAL  PRINCIPLES: 
Considering  the  meaning  of  "Constitutional" 
and  "Unconstitutional;  "  written  and  unwrit- 
ten constitutions,  bills  of  rights,  right  of  revo- 
lution, political  and  personal  responsibilities, 
etc. 

Chapter  II. 

THE  UNITED  STATES  AND  THE  STATES: 
Considering  the  nature  of  the  American 
Union,  sovereignty  and  rights  of  the  states 
and  of  the  people,  form  of  government,  the 
Federal  Constitution,  etc. 

Chapter  III. 

ESTABLISHMENT  AND  AMENDMENT  OF 
CONSTITUTIONS:  Containing  an  historical 
introduction,  and  considering  the  establish- 
ment and  amendment  of  the  Federal  Constitu- 
tion and  of  State  Constitutions. 

Chapter   IV. 

CONSTRUCTION  AND  INTERPRETATION  OF 
CONSTITUTIONS:  Considering  the  office 
and  duty  of  the  judiciary  in  this  direction. 

Chapter   V. 

THE  THREE  DEPARTMENTS  OF  GOVERN- 
MENT: Considering  the  division,  limitations 
on  the  departments,  political  and  judicial 
questions,  etc 

Chapter   VI. 

THE  FEDERAL  EXECUTIVE:  Considering 
the  election,  qualifications,  impeachment, 
compensation  and  independence  of  the  Presi- 
dent, his  oath  of  office,  veto  power,  pardoning 
»nd  military  power,  and  treaty-making  power  • 
vacancy  in  office!  the  cabinet,  appointments 
to  office,  presidential  messages,  diplomatic  re- 
lations, authority  to  convene  and  adjourn  con- 
gress, execute  the  laws,  etc. 

Chapter   VII. 

FEDERAL  JURISDICTION:  Considering  the 
jurisdiction,  powers  and  procedure  of  Federal 
courts,  removal  of  causes,  the  United  States 
and  the  states  as  parties,  etc 

Chapter   VIII. 

THE  POWERS  OF  CONGRESS:  Considering 
the  constitution,  organization  and  government 
of  congress,  its  powers,  and  the  limitations 
thereon. 

Chapter  IX. 

INTERSTATE  LAW,  as  determined  by  the  Con- 
stitution :  Considering  its  general  principles, 
the  privileges  of  citizens,  interstate  extradi- 
tion, public  acts  and  judicial  proceedings,  etc 

Chapter   X. 

EEPUBLICAN  GOVERNMENT  GUARANTIED. 


Chapter   XI. 

EXECUTIVE  PO  W  ER  IN  THE  8TATE& 
Chapter   XII. 

JUDICIAL  POWERS  IN  THE  STATES:  Con- 
sidering the  system  of  courts,  judges,  juris- 
diction, process  and  procedure. 

Chapter   XIII. 

LEGISLATIVE  POWER  IN  THE  STATES :  Con- 
sidering the  organization  and  government  of 
legislature,  limitation  and  delegation  of  legis- 
lative powers,  enactment  of  laws,  etc 

Chapter   XIV. 

THE  POLICE  POWER:  Considering  the  police 
power  as  vested  in  congress  and  in  the  states, 
and  its  scope  and  limitations. 

Chapter  XV. 

THE  POWER  OF  TAXATION:  Considering 
the  purposes  of  taxation,  independence  of 
Federal  and  State  governments,  limitations  on 
power,  taxation  and  representation,  etc 

Chapter  XVI. 

THE  RIGHT  OF  EMINENT  DOMAIN:  Defini- 
tion and  nature  of  the  power,  constitutional 
provisions,  authority  to  exercise,  public  pur- 
pose, appropriation  to  new  uses,  etc 

Chapter   XVII. 

MUNICIPAL  CORPORATIONS:  The  nature, 
control,  powers,  officers  and  by-laws  of  mu- 
nicipal corporations,  etc 

Chapter   XVIII. 

CIVIL  RIGHTS,  AND  THEIR  PROTECTION 
BY  THE  CONSTITUTION:  Considering 
rights  in  general,  liberty,  due  process  of  law, 
vested  rights,  trial  by  jury,  etc 

Chapter  XIX. 

POLITICAL  AND  PUBLIC  RIGHTS:  Consider- 
ing citizenship,  right  of  suffrage,  freedom  of 
Bpeech,  right  of  assembly  and  petition,  etc 

Chapter  XX. 

CONSTITUTIONAL    GUARANTIES   IN    CRIM- 
1        INAL    CASES:      Considering  trial  by  jury, 

rights  of  accused,  jeopardy,  bail,  ex  post  facto 

laws,  habeas  corpus,  etc 

Chapter  XXI. 

LAWS  IMPAIRING  THE  OBLIGATION  OF 
CONTRACTS:  Considering  the  obligation 
and  the  impairment  of  the  contract,  power  of 
legislature  to  contract,  remedies  on  contracts. 

Chapter    XXII. 

RETROACTIVE  LAWS:  Considering  the  validity 
of  retroactive  statutes,  curative  statutes,  etc 


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TABLE    OF   CONTENTS. 


Chapter  I. 

1CATURB  AND  DEFINITION  OP  EQUITY. 

Chapter   H. 

PRINCIPLES  DEFINING  AND  LIMITING  JU- 
RISDICTION: Considering  jurisdiction  over 
crimes,  adequate  legal  remedy,  complete  re- 
lief, and  multiplicity  of  suits. 

Chapter   ITL 

THE  MAXIMS  OP  EQUITY:  Definition  and 
classification  of  maxims;  the  enabling  and  re- 
strictive maxims. 

Chapter  IV. 

THE  DOCTRINES  OP  EQUITY:  Considering 
estoppel,  election,  satisfaction,  performance, 
and  conversion. 

Chapter  V. 

THE  DOCTRINES  OP  EQUITY  (Continued)  : 
Considering  conflicting  rights  of  purchasers, 
assignees,  notice,  bona  fide  purchasers,  priori- 
ties, etc. 

Chapter   VI. 

THE  DOCTRINES  OP  EQUITY  (Continued)  : 
Considering  penalties  and  forfeitures,  liqui- 
dated damages. 


Chapter  VII. 

GROUNDS  FOR  EQUITABLE  RELD3F: 
•idering  accident,  mistake,  fraud,  etc. 


Con- 


Chapter  VITI. 

PROPERTY  IN  EQUITY— T.RUSTS:  Covering 
definition,  history,  and  classification  of  trusts, 
charitable  trusts,  duties  and  liabilities  of  trus- 
tees, remedies  of  cestui  que  trust,  etc. 

Chapter   IX. 

PROPERTY  IN  EQUITY  —  MORTGAGES, 
LIENS,  AND  ASSIGNMENTS. 

Chapter   X. 

EQUITABLE  REMEDIES :  Covering  accounting, 
contribution,  exoneration,  subrogation,  and 
marshaling. 

Chapter   XI. 

EQUITABLE  REMEDIES  (Continued):  Cov- 
ering partition  and  settlement  of  boundaries. 

Chapter   XII. 

EQUITABLE  REMEDIES  (Continued):  Cov- 
ering specific  performance,  and  considering 
enforceable  contracts,  grounds  for  refusing  re- 
lief, etc. 

Chapter   XIII. 

EQUITABLE  REMEDIES  (Continued):  Cov- 
ering injunctions,  and  considering  their  juris- 
dictional principles,  classes  of  cases  where 
remedy  may  be  used,  etc. 

Chapter   XIV. 

REFORMATION,  CANCELLATION,  AND 
QUIETING  TITLE. 

Chapter   XV. 

ANCILLARY  REMEDIES :  Covering  discovery, 
bills  to  perpetuate  testimony,  interpleader, 
receivers,  etc. 


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TABLE  OF  CONTENTS. 


Chapter   I. 

JURISDICTION:  Covering  courts  of  criminal  ju- 
risdiction and  venue. 

Chapter   II. 

APPREHENSION  OF  PERSONS  AND  PROP- 
ERTY :  Covering  arrest  in  general,  warrants, 
extradition,  searches  and  seizures  of  property, 
and  taking  property  from  prisoner. 

Chapter  IH. 

PRELIMINARY  EXAMINATION,  BAIL.  AND 
COMMITMENT:  Covering  right  to  release  on 
bail,  habeas  corpus,  the  recognizance,  release 
of  sureties,  etc. 

Chapter   IV. 

MODE  OF  ACCUSATION:  Covering  the  indict- 
ment and  presentment,  information,  coroner's 
inquisition,  time  of  prosecution,  and  nolle 
prosequi,  etc. 

Chapter   V. 

PLEADING  — THE  ACCUSATION:  Covering 
form  of  indictment  in  general,  the  commence- 
ment, and  the  statement  of  often  se  and  descrip- 
tion of  defendant. 

Chapter   VI. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  allegation  of  intent,  knowledge,  etc. ; 
technical  terms ;  second  or  third  offense;  set- 
ting forth  writings;  description  of  property 
and  persons;  ownership. 

Chapter  VH. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  statement  of  time  and  place. 


Chapter  VIH. 

PLEADING— THE  ACCUSATION  (Continned)t 
Covering  indictments  on  statutes. 

Chapter   IX. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  duplicity,  joinder  of  counts  and  par- 
ties, election,  conclusion  of  indictment,  amend- 
ment, aider  by  verdict,  etc 

Chapter   X. 

PLEADING  AND  PROOF:  Covering  variance 
and  conviction  of  minor  and  higher  offense. 

Chapter   XI. 

MOTION  TO  QUASH:  Covering  also  arraign- 
ment, demurrer,  and  pleas  of  defendant. 

Chapter   XII. 

TRIAL  AND  VERDICT:  Covering  time  and  place 
of  trial,  custody  and  presence  of  defendant, 
bill  of  particulars,  the  counsel,  judge  and  jury, 
arguments  and  instructions,  etc. 

Chapter   XIH. 

PROCEEDINGS  AFTER  VERDICT:  Covering 
motion  in  arrest  of  judgment,  sentence,  new 
trial,  writ  of  error,  etc. 

Chapter   XIV. 

EVIDENCE:  Covering  facts  in  issue,  motive, 
res  gestae,  other  crimes,  declarations,  confes- 
sions, character,  burden  of  proof,  witnesses, 
etc. 

Chapter   XV. 

HABEAS  CORPUS. 


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Author  of   "Tiffany  on  Death  by  Wrongful  Act" 


TABLE  OF  CONTENTS. 


Chapter    I. 

FORMATION  OF  THE  CONTRACT:  Covering 
the  capacity  of  parties,  who  may  sell,  the  thing 
sold,  mutual  assent,  form,  and  price. 

Chapter    H. 

FORMATION  OP  THE  CONTRACT  (Continued) : 
Covering  the  statute  of  frauds. 

Chapter   ITT. 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY:  Covering  sales  of  specific 
chattels, — unconditional  sales,  conditional  sales, 
sale  on  trial  or  approval,  and  sale  or  return. 

Chapter   IV. 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY  (Continued) :  Covering  sales 
of  chattels  not  specific,  appropriation  of  property 
to  the  contract,  reservation  of  right  of  disposal, 
etc. 

Chapter    V. 

MISTAKE,  FAILURE  OF  CONSIDERATION, 
AND  FRAUD :  Showing  the  effect  of  mistake, 
failure  of  consideration,  and  fraud  generally, 
frauds  on  creditors,  the  delivery  necessary  as 
against  creditors  and  purchasers,  etc. 


Chapter   VX. 

ILLEGALITY:  Covering  sales  prohibited  by  the 
common  law,  by  publlo  policy,  and  by  statute; 
the  effect  of  illegality,  and  the  confliot  of  laws. 


Chapter   VH. 

CONDITIONS  AND  WARRANTIES:  Covering 
conditions  and  war  ranties  generally. 

Chapter   VIII. 

PERFORMANCE:  Covering  fully  delivery,  the 
buyer's  right  of  examination,  acceptance,  and 
payment* 

Chapter  IX. 

RIGHTS  OF  UNPAID  SELLER  AGAINST  THB 
GOODS:  Covering  the  seller's  lien,  stoppage 
in  transitu,  and  the  right  of  resale. 

Chapter   X. 

ACTION  FOR  BREACH  OF  THE  CONTRACT: 
Covering  the  various  remedies  of  the  seller  and 
of  the  buyer. 


I  Volume.     356  Pages.     $3.75,  Delivered. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


(9) 


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TABLE  OF   CONTENTS. 


INTRODUCTION. 

Covering  the  definition,  source,  and  nature  of  In- 
ternational Law. 

Chapter   I. 

PERSONS  EN  INTERNATIONAL  LAW:  Cov- 
ering states,  their  loss  of  identity,  various  unions 
of  states,  de  facto  states,  belligerency  and  recog- 
nition thereof,  and  equality  of  states. 

Chapter   EL 

THE  COMMENCEMENT  OF  STATES— FUNDA- 
MENTAL RIGHTS  AND  DUTIES:  Covering 
the  commencement  and  recognition  of  new 
states,  effect  of  change  of  sovereignty,  the  fun- 
damental right*  and  duties  of  states,  etc 

Chapter   III. 
TERRITORIAL    PROPERTY    OF    A    STATE: 
Covering  modes  of  acquiring  property,  boun- 
daries, territorial  waters,  etc. 

Chapter   IV. 

TERRITORIAL  JURISDICTION:  Covering  ex- 
territoriality, sovereigns  and  diplomatic  agents 
and  their  immunities,  vessels,  right  of  asylum, 
alienage,  responsibility  for  mob  violence,  extra- 
dition, jurisdiction  beyond  state  limits,  etc 

Chapter   V. 

JURISDICTION  ON  THE  HIGH  SEAS  AND 
UNOCCUPIED  PLACES:  Covering  nature  of 
jurisdiction,  jurisdiction  over  merchant  ships, 
piracy,  privateers,  letters  of  marque,  slave 
trade,  eta 

Chapter   VI. 

THE  AGENTS  OF  A  STATE  IN  INTERNA- 
TIONAL RELATIONS:  Covering  public  diplo- 
matic agents  and  consuls,  and  matters  relating 
to  them. 

Chapter   VH. 

INTERVENTION:  Covering  the  subject  gener- 
ally. 

Chapter   VIIL 

NATIONALITY:  Covering  citizenship,  allegi- 
ance, expatriation,  naturalization,  etc 


TREATIES! 


Chapter   IX. 

Covering  the  subject  generally. 


Chapter   X. 

AMICABLE  SETTLEMENT  OF  DISPUTES: 
Covering  mediation,  arbitration,  retorsion,  re- 
prisals, embargo,  pacific  blockade,  etc 

Chapter   XL 

INTERNATIONAL  RELATIONS  IN  WAR: 
Covering  the  subject  of  war  generally,  includ- 
ing the  kinds,  causes,  and  objects  of  war. 

Chapter   XII. 

EFFECTS  OF  WAR— AS  TO  PERSONS:  Cov- 
ering the  relations  of  enemies.,  noncombatants, 
privateers,  prisoners  of  war,  and  the  subjects  of 
ransom,  parole,  etc 


Chapter    XIII. 

EFFECTS  OF  WAR  — AS  TO  PROPERTY: 
Covering  contributions,  requisitions,  foraging, 
booty,  ransom,  and  other  questions  in  regard 
to  property. 

Chapter   XIV. 

POSTLIMINIUM:  The  right  and  Its  limitations 
defined  and  explained. 

Chapter   XV. 

MILITARY  OCCUPATION:  Covering  the  defi- 
nition, extent,  and  effect  of  occupation,  and  the 
duties  of  an  occupant. 

Chapter   XVL 

MEANS  OF  CARRYING  ON  HOSTILITIES: 
Covering  the  instruments  and  means  of  war, 
spies,  etc. 

Chapter   XVTL 

ENEMY  CHARACTER:  Covering  enemies  gen- 
erally, domicile,  house*  of  trade,  property  and 
transfer  thereof,  etc. 

Chapter   XV  ILL 

NON-HOSTILE  RELATIONS:  Covering  oom- 
mercia  belli,  flags  of  truce,  passports,  safe-con- 
ducts, truces  or  armistices,  cartels,  etc 

Chapter   XIX. 

TERMINATION  OF  WAR:  Covering  the  meth- 
ods of  termination,  uti  possidetis,  treaties  of 
peace,  conquest,  etc. 

Chapter   XX. 

OF  NEUTRALITY  IN  GENERAL:  Neutrality 
defined  and  explained. 

Chapter   XXL, 

THE  LAW  OF  NEUTRALITY  BETWEEN  BEL- 
LIGERENT AND  NEUTRAL  STATES:  Cov- 
ering the  rights,  duties,  and  liabilities  of  neutral 
states. 

Chapter   XXIL 

CONTRABAND :    Covering  the  subject  generally. 
Chapter  XXIII. 

BLOCKADE:     Covering  the  subject  generally. 

Chapter  XXIV. 

VISIT  AND  SEARCH,  AND  RIGHT  OF  AN- 
GARY :    Covering  those  subjects  generally. 

APPENDIX. 

Giving  in  f  uR,  as  in  no  other  single  work,  the  In- 
structions for  the  Government  of  Armies  of  the 
United  States  in  the  Field  (Lieber) ;  Papers  Car- 
ried, or  that  Ought  to  be  Carried,  by  Vessels  in 
Evidence  of  their  Nationality;  The  Declaration 
of  Paris;  The  Declaration  of  St.  Petersburg; 
The  Geneva  Convention  for  the  Amelioration  of 
the  Condition  of  the  Sick  and  Wounded  of  Ar- 
mies in  the  Field ;  The  Laws  of  War  on  Land, 
(Recommended  for  Adoption  by  the  Institute  of 
International  Law  at  Oxford,  Sept  8, 1880) ;  and 
The  Brussels  Conference. 


1   VOLUME.     500   PAGES.      $3.75,   DELIVERED. 

WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 

(10) 


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$  gcmfcflooft  of 

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(Efcwfn  $.  Siiggdrb,  $..  (Jft.,  ££,.  (g., 

Professor  of  the  Law  of  Torts  in  the  Minnesota  University  Law  School. 


TABLE   OF  CONTENTS. 
PART  I.— IN  GENERAL. 


Chapter   I. 

GENERAL  NATURE  OP  TORTS:  Covering  the 
law  adjective  and  law  substantive,  distinctions 
between  torts  and  crimes,  common-law  obliga- 
tions and  remedies,  how  and  why  liability  at- 
taches for  torts,  the  mental  element,  connec- 
tion as  cause,  damnum  and  injuria,  common- 
law,  contract  and  statutory  duties,  etc. 

Chapter   II. 

VARIATIONS  IN  THE  NORMAL  RIGHT  TO 
TO  SUE:  Covering  exemptions  based  on 
privilege  of  actor,  as  public  acts  of  states,  of 
judicial  and  executive  officers,  etc.,  and  private 
acts  authorized  by  statute  or  common  law, 
variations  based  on  status  or  conduct  of  plain- 
tiff, etc 

Chapter  III. 

LIABILITY  FOR  TORTS  COMMITTED  BY  OR 
WITH  OTHERS:  Covering  liability  by  con- 
cert in  action  or  joint  torts,  and  liability  by 
relationship,  as  husband  and  wife,  landlord 
and  tenant,  master  and  servant,  partners,  etc. 

Chapter  IV. 

DISCHARGE  AND  LIMITATION  OP  LIABILI- 
ITY  FOR  TORTS:  Covering  discharge  or 
limitation  by  voluntary  act  of  party  and  by 
operation  of  law. 

Chapter  V. 

REMEDIES:  Covering  statutory  and  common- 
law  remedies,  judicial  and  extrajudicial  reme- 
dies, damages,  etc. 

PART  II.— SPECIFIC  "WRONGS. 
Chapter  VI. 

WRONGS  AFFECTING  SAFETY  AND  FREE- 
DOM OF  PERSONS:  Covering  false  impris- 
onment, assault  and  battery,  and  the  defenses, 
as  justification  and  mitigation. 


Chapter  VH. 

INJURIES  IN  FAMILY  RELATIONS:  Corer- 
ing  the  family  at  common  law,  master  and 
servant,  parent  and  child,  husband  and  wife. 

Chapter  VIII. 

WRONGS  AFFECTING  REPUTATION:  Cover- 
ing libel,  slander,  and  slander  of  title,  together 
with  the  defenses. 

Chapter   IX. 

MALICIOUS  WRONGS:  Covering  deceit,  mali- 
cious prosecution,  abuse  of  process,  interfer- 
ence with  contract,  conspiracy,  etc. 

Chapter  X. 

WRONGS  TO  POSSESSION  AND  PROPERTY.- 

Covering  the  nature  of  possession  and  its  ob- 
jects, trespass,  waste,  conversion,  etc 

Chapter   XI. 

NUISANCE:  Covering  kinds  of  nuisance,  as  pub- 
lic, private,  and  mixed,  continuing  and  legal- 
ized, parties  to  proceedings  against,  remedies, 
etc. 

Chapter  XII. 

NEGLIGENCE:  Covering  the  duty  to  exercise 
care,  what  is  commensurate  care,  common-law, 
contract  and  statutory  duties,  damages,  con- 
tributory negligence,  etc. 

Chapter   XIII. 

MASTER  AND  SERVANT:  Covering  master's 
liability  to  servant  for  negligence,  master's 
duty  to  servant,  assumption  of  risk  by  serv- 
ant, various  kinds  of  risks,  fellow  servants, 
vice  principals,  etc 

Chapter   XIV. 

COMMON  CARRIERS:     Covering   the   subject 

generally. 


2  VOLS.     1,328  PAGES.    $7.50,   DELIVERED. 


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DY    Pi.    ^•Mlvlr^DtL-Ll-    DL_A\^rv,  tises  on  constitutional  law.  judgments,  etc. 


TABLE   OF   CONTENTS. 


Chapter   I. 

NATURE  AND  OFFICE  OF  INTERPRE- 
TATION: Covering  definition  of  terms,  ob- 
ject of  interpretation,  rules  of  construction, 
and  office  of  judiciary. 

Chapter  II. 

CONSTRUCTION  OF  CONSTITUTIONS: 
Covering  method  and  rules  of  construction, 
construction  as  a  whole,  common  law  and  pre- 
vious legislation,  retrospective  operation,  man- 
datory and  directory  provisions,  preamble  and 
titles,  extraneous  aids,  schedule,  stare  decisis, 
etc. 

Chapter   III. 

GENERAL  PRINCIPLES  OF  STATUTORY 
CONSTRUCTION:  Covering  literal  and  eq- 
uitable construction,  scope  and  purpose  of  the 
act,  casus  omissus,  implications  in  statutes, 
meaningless  statutes,  errors,  misprints,  sur- 
plusage, interpolation  of  words,   etc. 

Chapter  IV. 

STATUTORY  CONSTRUCTION;  PRE- 
SUMPTIONS: Covering  presumptions  against 
exceeding  limitations  of  legislative  power,  un- 
constitutionality, injustice,  irrepealable  laws, 
implied  repeal  of  laws,  etc.,  presumptions  as 
to  public  policy,  as  to  jurisdiction  of  courts, 
etc 

Chapter   V. 

STATUTORY  CONSTRUCTION;  WORDS 
AND  PHRASES.  Covering  technical  and 
popular  meaning  of  words,  commercial  and 
trade,  general  and  special,  relative  and  qual- 
ifying, and  permissive  and  mandatory  terms; 
conjunctive  and  disjunctive  particles,  adopted 
and  re-enacted  statutes,  computation  of  time, 
etc. 

Chapter  VI. 

INTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  construction  as  a 
whole,  context,  title,  preamble,  interpretation 
clause,  etc. 

Chapter  VH. 

EXTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  admissibility  of  ex- 
trinsic aids,  statutes  in  pari  materia,  con- 
temporary history,  construction  and  usage, 
journals  of  legislature,  opinions  of  legislators. 
etc. 

Chapter   VIII. 

INTERPRETATION  WITH  REFERENCE 
TO  COMMON  LAW:  Covering  statutes  af- 
firming^ supplementing,  superseding  or  in 
derogation  of,  common  law. 


Chapter  IX. 

RETROSPECTIVE  INTERPRETATION: 
Covering  definition,  constitutional  considera- 
tions, vested  rights,  remedial  statutes,  and 
statutes  regulating  procedure. 

Chapter   X. 

CONSTRUCTION  OF  PROVISOS,  EXCEP- 
TIONS, AND  SAVING  CLAUSES:  Cov- 
ering the  subject  generally. 

Chapter    XL 

STRICT  AND  LIBERAL  CONSTRUCTION: 

Covering  penal  and  remedial  statutes,  stat- 
utes against  common  right,  against  frauds, 
and  of  limitation,  legislative  grants,  revenue 
and  tax  laws,  etc 

Chapter  XII. 

MANDATORY  AND  DIRECTORY  PROVI- 
SIONS: Definitions  and  rules  covering  the 
subject  generally. 

Chapter   XIII. 

AMENDATORY  AND  AMENDED  ACTS: 
Covering  construction  of  amendments  and  of 
statute  as  amended,  identification  of  act  to  be 
amended,  amendment  by  way  of  revision,  etc. 

Chapter   XIV. 

CONSTRUCTION  OF  CODES  AND  RE- 
VISED STATUTES:  Covering  construction 
as  a  whole,  reference  to  original  statutes, 
change  of  language,  previous  judicial  construc- 
tion, etc. 

Chapter   XV. 

DECLARATORY  STATUTES:  Covering  defi- 
nition and  construction  in  general. 

Chapter   XVI. 

THE  RULE  OF  STARE  DECISIS  AS  AP- 
PLIED TO  STATUTORY  CONSTRUC- 
TION: Covering  the  general  principle,  re- 
versal of  construction,  federal  courts  follow- 
ing state  decisions,  construction  of  statutes  of 
other  states,  etc. 

Chapter   XVII. 

INTERPRETATION  OF  JUDICIAL  DECI- 
SIONS AND  THE  DOCTRINE  OF  PREC- 
EDENTS: Covering  the  nature  of  prece- 
dents; dicta;  stare  decisis;  the  force  of  prece- 
dents as  between  different  courts;  the  law  of 
the  case,  etc 


1    VOLUME.      509    PAGES. 


WEST  PUBLISHING  CO..      « 

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S3. 75.    DELIVERED. 

St.  Paul,  Minn. 


(£0e  |E)om6oo{i  ^crtec.) 


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TABLE    OF    CONTENTS. 


Chapter    I. 

IN  GENERAL:  Covering  definition  and  gen- 
eral principles  common  to  all  bailments; 
classification    of    bailments. 

Chapter  II. 

BAILMENTS  FOR  SOLE  BENEFIT  OF 
BAILOR:  Covering  depositum  and  man- 
datum,  creation,  rights  and  liabilities  of 
parties,   termination,    etc. 


Chapter    III. 

BAILMENTS  FOR  BAILEE'S  SOLE  BEN- 
EFIT: Commodatum,  creation,  rights  and 
liabilities  of  parties,  termination,  etc. 

Chapter  IV. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
PLEDGES:  Covering  definition  of  pledge, 
creation,  title  of  pledgor,  rights  and  liabil- 
ities of  parties  before  and  after  default,  ter- 
mination, etc. 

Chapter   V. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
HIRING:  Locatio  or  hiring  defined:  estab- 
lishment of  relation;  rights  and  liabilities 
of  parties;  hiring  of  things  for  use;  hire  of 
labor  and  services;  warehousemen;  wharf- 
ingers; safe-deposit  companies;  factors,  etc.; 
termination  of  relation,  etc 


Chapter  VT. 

INNKEEPERS:  Innkeeper  defined;  who  are 
guests;  commencement  of  relation;  duty 
to  receive  guest;  liability  for  guests'  goods; 
lien;  termination  of  relation;  liability  as 
ordinary  bailee,  etc. 

Chapter  VII. 

CARRIERS  OF  GOODS:  Common  carriers, 
essential  characteristics;  when  liability  at- 
taches; discrimination;  compensation;  lien; 
liability  as  insurers  and  as  ordinary  bailees; 
carriers  of  live  stock;  carriers  of  baggage; 
contracts  and  notices  limiting  liability;  ter- 
mination of  liability;  connecting  carriers, 
etc.;  post-office  department;  private  car- 
riers. 

Chapter   VIII. 

CARRIERS  OF  PASSENGERS:  Who  are 
passengers;  when  liability  attaches;  duty 
to  accept  passengers;  furnishing  equal  ac- 
commodations; ticket  as  evidence  of  pas- 
senger's rights;  right  to  make  regulations; 
injuries  to  passengers;  contracts  limiting 
liability;  termination  of  liability;  ejection 
fr>>m  vehicle:  connecting  carriers,  and  cov- 
ering the  subject  generally. 

Chapter   IX. 

ACTIONS  AGAINST  CARRIERS:  Actions 
against  carriers  of  goods  and  carriers  of 
passengers;  parties:  form  of  action;  plead- 
ing;   evidence;    damages. 


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Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE   OF  CONTENTS. 


Part  I -ELEMENTARY  JURISPRUDENCE. 

CHAPTER   X. 
NATURE  OP  LAW  AND  THE  VARIOUS  SYSTEMS: 
Moral,    divine,    municipal.    International,    mari- 
time and  martial  law. 

CHAPTER   H. 

GOVERNMENT  AND  ITS  FUNCTIONS:  Covering 
sovereignty,  the  state,  the  constitution,  and  the 
forma  and  functions  of  government  generally. 

CHAPTER   HX 

GOVERNMENT  IN  THE  UNITED  STATES:  Ita 
general  character,  sovereignty,  distribution  of 
powers,   citizenship,   etc. 

CHAPTER   IV. 

THE  UNWRITTEN  LAW:  The  Roman,  the  Canon 
and  the  Common  law. 

CHAPTER  V. 

EQUITY:  Nature  and  Jurisdiction  of  equity;  max- 
ims. 

CHAPTER    VI. 

THE  WRITTEN  LAW:  Relation  to  unwritten  law; 
statutory  law  In  general. 

CHAPTER   VTL 

THE  AUTHORITIES  AND  THEIR  INTERPRETA- 
TION: The  rank  of  authorities,  rules  of  inter- 
pretation,  statutory  construction,   etc. 

CHAPTER    VHI. 

PERSONS  AND  PERSONAL.  RIGHTS:  Legal 
rights,  wrongs  and  remedies,  rights  in  rem  and 
in  personam,  status,  personal  security,  liberty, 
property,   constitutional  guaranties,  etc 

CHAPTER  IX. 

PROPERTY:  Covering,  ownership  and  possession; 
the  Feudal  system;  corporeal  and  incorporeal, 
real  and  personal,  property;    fixtures,  etc 

CHAPTER   X. 

CLASSIFICATION  OF  THE  LAW:  Substantive 
and  adjective,  public  and  private  law,  etc 

Part  SI— THE  SUBSTANTIVE  LAW. 

CHAPTER   XL 

CONSTITUTIONAL  AND  ADMINISTRATIVE  LAW: 
Written  and  unwritten  constitutions,  essentials 
and  construction  of  constitutions;  administra- 
tive law.  etc. 

CHAPTER    XIX 

CRIMINAL  LAW:  Covering  its  general  nature, 
criminal  capacity,  classification  of  crimes,  pun- 
ishment,  etc 

CHAPTER    XHX 

THE  LAW  OF  DOMESTIC  RELATIONS:  Cover- 
ing marriage  and  Its  Incidents,  parent  and  child, 
guardian  and  ward,  master  and  servant,  etc 


CHAPTER   XTV. 

CORPOREAL  AND  INCORPOREAL  HEREDITA- 
MENTS:   Covering   the  subject  generally. 

CHAPTER   XV. 

ESTATES  IN  REAL  PROPERTY:  Classification, 
estates  In  possession  and  in  expectancy;  free- 
holds and  estates  less  than  freehold;  estates  in 
severalty,  in  joint  tenancy  and  in  common;  ab- 
solute and  conditional,  legal  and  equitable  es- 
tates;    etc 

CHAPTER   XVL 

TITLES  TO  REAL  PROPERTY:  Covering  title  by 
descent  and  by  purchase,  classification  and 
forms  of  deeds,  etc 

CHAPTER   XVTL 

PERSONAL  PROPERTY:  Real  and  personal  chat- 
tels, ownership  of  personal  property,  acquisition 
of  title,  etc 

CHAPTER   XVIH. 

SUCCESSION  AFTER  DEATH:  Testate  and  Intes- 
tate succession,  escheat,  executors  and  adminis- 
trators,   etc 

CHAPTER   XIX. 

CONTRACTS:  Definition,  validity  and  classification 
of  contracts,  quasi  contracts,  etc 

CHAPTER    XX. 

SPECIAL  CONTRACTS:  Covering  contracts  of 
sale,  bailments,  negotiable  contracts,  suretyship, 
Insurance,    etc 

CHAPTER    XXI. 

AGENCY:    Covering  the  subject  generally. 


CHAPTER   XXH. 

COMMERCIAL     ASSOCIATIONS:      Covering 


part- 


iiMJiiKijiA  i_i  Assu^iAiiumo:  covering  part- 
nerships, joint  stock  companies,  voluntary  asso- 
ciations,  corporations,    etc 

CHAPTER    XXTTt. 

TORTS :  Covering  the  nature  and  elements  of  torta, 
proximate  and  remote  cause  and  specific  torts. 

Part  III— THE  ADJECTIVE  LAW. 

CHAPTER   XXIV. 

REMEDIES:  Extralegal  and  legal,  penal  and  drfl, 
common  law  and  equitable,  ordinary  and  extraor- 
dinary remedies. 

CHAPTER   XXV. 
COURTS    AND    THEIR    JURISDICTION:    Covering 
the  subject  generally. 

CHAPTER   XXVL 

PROCEDURE:  In  general;  outlines  of  common 
law,  equity,  code,  and  criminal  procedure. 

CHAPTER   XXVII. 

TRIALS:    Early  forma,  trial  procedure,  evidence. 


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TABLE    OF    CONTENTS. 


CHAPTER   L 

DEFINITIONS  AND  GENERAL  PRINCIPLES: 
Definition,  nature  and  theory  of  damages; 
wrong  and  damage;  analysis  of  legal  wrongs; 
classification   of  damages. 

CHAPTER   H. 

NOMINAL  DAMAGES:  Definition  and  general  na- 
ture. 

CHAPTER   III. 

COMPENSATORY  DAMAGES:  Definition;  proxi- 
mate and  remote  consequences;  direct  and  con- 
sequential losses;  avoidable  consequences;  cer- 
tainty of  damages;  profits;  entirety  of  demand; 
past  and  future  losses;  elements  of  compensa- 
tion; aggravation  and  mitigation  of  damages; 
reduction  of  loss;  injuries  to  limited  Interests, 
etc 

CHAPTER   IV. 

BONDS,  LIQUIDATED  DAMAGES  AND  ALTERNA- 
TIVE CONTRACTS:  Covering  the  subject  gen- 
erally. 

CHAPTER   V. 

INTEREST:  Definition;  as  a  debt  and  as  damages; 
Interest  on  liquidated  and  unliquidated  de- 
mands; on  overdue  paper, — contract  and  stat- 
ute  rate;    compound  Interest;    etc 

CHAPTER   VI. 

VALUE:  Definition;  how  estimated;  market  value; 
pretium  affectionis;  value  peculiar  to  owner; 
time  and  place  of  assessment;  highest  Interme- 
diate  value;     etc. 

CHAPTER    VII. 

EXEMPLARY  DAMAGES:  In  general;  when  re- 
coverable; liability  of  principal  for  act  of  agent; 
etc 

CHAPTER   VHI. 

PLEADING  AND  PRACTICE:  Allegation  of  dam- 
age, the  ad  damnum,  form  of  statement,  prov- 
ince of  court  and  jury,  etc 


CHAPTER  IX. 

BREACH  OP  CONTRACTS  FOR  SALE  OP  GOODS: 
Damages  In  action  by  seller  for  non-acceptance 
and  non-payment;  damages  In  action  by  buyer 
for  non-delivery,  breach  of  warranty,  and  as  fer 
conversion. 

CHAPTER   X. 

DAMAGES  IN  ACTIONS  AGAINST  CARRIER: 
Carriers  of  goods, — refusal  to  transport,  non- 
delivery. Injury  in  transit,  delay,  consequential 
damages;  carriers  of  passengers,— Injuries  to 
passenger  exemplary  damages,  mental  suffering, 
delay,  wrongful  ejection,  etc 

CHAPTER   XL 

DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH 
COMPANIES:  Actions  by  sender  and  by  receiv- 
er; proximate  and  certain,  remote  and  specula- 
tive damages;  notice  of  purpose  and  importance 
of  message;  cipher  messages;  avoidable  conse- 
quences;   exemplary  damages;    etc 

CHAPTER    XXI. 

DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT: 
Pecuniary  losses;  mental  sxiffering;  exemplary 
damages;  injury  to  deceased;  medical  and  fu- 
neral expenses;  meaning  of  pecuniary,  —care  and 
support,  prospective  giits  and  inheritances;  In- 
terest as  damages;  discretion  of  Jury;  nominal 
damages,    etc 

CHAPTER   XIJX 

WRONGS  AFFECTING  REAL  PROPERTY:  Dam- 
ages for  detention  of  real  property;  trespass; 
nuisance;  waste;  contract  to  sell  real  property, 
— breach  by  vendor  or  vendee;  breach  of  cove- 
nants,   etc 

CHAPTER   XIV. 

BREACH  OF  MARRIAGE  PROMISE:  In  general, 
compensatory   damages,   exemplary  damages,  etc 


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TABLE   OF   CONTENTS. 


Chapter  I. 

WHAT  IS  REAL  PROPERTY:  Real  and 
personal  property,  fixtures,  equitable  conver- 
sion, personal  interests  in  land. 

Chapter   II* 

TENURE  AND  SEISIN. 

Chapter  III. 

ESTATES  AS  TO  QUANTITY— FEE  SIM- 
PLE: Classification  of  estates,  freehold, 
fee-simple,  creation,  right  of  user  and  aliena- 
tion. 

Chapter  IV. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
ESTATES  TAIL:  Classes,  origin,  crea- 
tion, incidents,  duration,  tenant  in  tail  aft- 
er possibility  of  issue  extinct,  estates  tail  in 
the  United  States,  quasi  entail. 

Chapter  V. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
CONVENTIONAL  LIFE  ESTATES: 
Life  estates,  creation,  conventional  life  es- 
tates, incidents,  estates  per  autre  vie. 

Chapter  VI. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
LEGAL  LIFE  ESTATES:  Estate  during 
coverture,  curtesy,  dower,  homestead,  fed- 
eral homestead  act. 

Chapter  VII. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
LESS  THAN  FREEHOLD:  Estates  for 
years,  letting  land  on  shares,  tenancies  at 
will,  tenancies  from  year  to  year,  letting  of 
lodgings,  tenancies  at  sufferance,  licenses. 

Chapter   VIII. 

ESTATES  AS  TO  QUALITY  ON  CONDI- 
TION—ON LIMITATION:  Estates  on 
condition,  estates  on  limitation,  base  fees. 

Chapter   IX. 

ESTATES  AS  TO  QUALITY  (Continued)— 
MORTGAGES:  Parties,  nature,  form, 
rights  and  liabilities  of  mortgagor  and  mort- 
gagee, assignment  of  the  equity  of  redemp- 
tion, assignment  of  the  mortgage,  priority 
of  mortgages  and  other  conveyances,  regis- 
tration, discharge  of  a  mortgage. 


Chapter    X. 

EQUITABLE   ESTATES:      Statute    of   ose« 

classification    of    trusts, — express,    implied 

resulting,  constructive, — incidents  of  equita 

ble  estates,  charitable  trusts. 

Chapter    XI. 

ESTATES  AS  TO  TIME  OF  ENJOYMENT 
—FUTURE  ESTATES:  Reversions,  possi- 
bilities of  reverter,  remainders,  rule  in  Shel- 
by's Case,  future  uses,  springing  uses, 
shifting  uses,  executory  devises,  incidents 
of  future  estates. 

Chapter  XII. 

ESTATES  AS  TO  NUMBER  OF  OWNERS 
—JOINT  ESTATES:  Joint  tenancies,  ten- 
ancies in  common,  estates  in  coparcenary, 
estates  in  entirety,  estates  in  partnership, 
incidents  of  joint  estates,  partition. 

Chapter   XIII. 

INCORPOREAL  HEREDITAMENTS: 
Easements,  creation,  classification,  inci- 
dents, destruction,  rights  of  way,  highways, 
light  and  air,  lateral  and  subjacent  sup- 
port, party  walls,  easements  in  water,  prof- 
its a  prendre,  rents,  franchises. 

Chapter   XIV. 

LEGAL  CAPACITY  TO  HOLD  AND  CON- 
VEY REALTY:  Infants,  persons  of  un- 
sound mind,  married  women,  aliens,  corpo- 
rations. 

Chapter   XV. 

RESTRAINTS  ON  ALIENATION:  Re- 
straints imposed  by  law,  restraints  in  favor 
of  creditors,  restraints  imposed  in  creation 
of  estate. 


Chapter   XVI. 

TITLE:  Acquisition  of  title  by  state  and  pri- 
vate persons,  grant  from  state,  conveyan- 
ces, common-law  conveyances,  conveyances 
under  statute  of  uses,  modern  statutory  con- 
veyances, registered  titles,  requisites  of 
deeds;  covenants  for  title,  seisin,  against 
incumbrances,  warranty,  further  assurance; 
estoppel,  adverse  possession,  accretion,  de- 
vise, descent,  judicial  process;  conveyances 
under  licenses,  under  duress;  tax  titles,  em- 
inent domain. 


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TABLE    OF 
PART  I. 

HUSBAND  AND  WIFE. 
Chapter   I. 

MARRIAGE:  Covering  definition  and  essen- 
tials; capacity  of  parties;  reality  of  con- 
sent; formalities  in  celebration;  annul- 
ment and  avoidance;  validating  acts;  con- 
flict of  laws,  etc. 

Chapter   II. 

PERSONS  OF  THE  SPOUSES  AS  AF- 
FECTED BY  COVERTURE:  Covering 
rights  inter  se;  crimes  and  torts  of  married 
women;  crimes  and  torts  as  between  hus- 
band and  wife;  torts  against  married  wo- 
men; actions  for  alienation  of  affections; 
crim.  con.,  etc. 

Chapter  III. 

RIGHTS  IN  PROPERTY  AS  AFFECTED 
BY  COVERTURE:  Covering  wife's  earn- 
ings; wife's  choses  in  action  and  in  posses- 
sion; wife's  chattels  real;  administration 
of  wife's  estate;  equitable  and  statutory 
separate  estate;  community  property;  cur- 
tesy;   dower;    estates  by  the  entirety,  etc. 

Chapter  IV. 

CONTRACTS,  CONVEYANCES,  ETC., 
AND  QUASI-CONTRACTUAL  OBLI- 
GATIONS: Covering,  inter  alia,  husband's 
liability  for  wife's  necessaries,  antenuptial 
debts,  and  funeral  expenses;  wife  as  a  sole 
trader;  wife  as  husband's  agent;  convey- 
ances, sales,  and  gifts  by  the  wife,  etc. 

Chapter  V. 

WIFE'S  EQUITABLE  AND  STATUTORY 
SEPARATE  ESTATE:  Covering  their 
nature;  jus  disponendi;  power  to  charge  by 
contract,  etc. 

Chapter  VI. 

ANTENUPTIAL  AND  POSTNUPTIAL 
SETTLEMENTS:  Covering  the  subject 
generally,  Including  marriage  as  a  consid- 
eration; the  statute  of  frauds;  validity 
against  creditors  and  purchasers,  etc. 

Chapter  VII. 

SEPARATION  AND  DIVORCE:  Covering 
agreements  for  separation;  jurisdiction  to 
grant  divorce;  grounds  for  divorce;  de- 
fenses in  actions  for  divorce;  legislative  di- 
Torce,  etc. 

PART  II. 
PARENT  AND  CHILD. 
Chapter   VIII. 
LEGITIMACY,      ILLEGITIMACY,      AND 
ADOPTION:    Covering  legitimacy  of  chil- 
dren; adoption  of  children;  status  of  illegiti- 
mate children. 


CONTENTS. 

Chapter  IX. 

DUTIES  AND  LIABILITIES  OF  PAR- 
ENTS: Maintenance,  protection,  and  edu- 
cation of  child;  allowance  out  of  child's 
estate;  child  as  parent's  agent;  parent's  lia- 
bility for  crimes  and  torts  of  child,  etc. 

Chapter  X. 
RIGHTS  OF  PARENTS  AND  OF  CHIL- 
DREN: Right  to  custody;  service  and 
earnings  of  child;  correction  of  child; 
emancipation  of  children;  action  by  parent 
for  injuries  to  child;  gifts,  contracts,  and 
conveyances  between;  advancements;  duty 
to  support  parent;    domicile  of  child,  etc 

PART  III. 

GUARDIAN  AND  WARD. 
Chapter    XI. 

GUARDIANS  DEFINED  —  SELECTION 
AND  APPOINTMENT:  Covering  natural 
guardians;  testamentary  guardians;  statu- 
tory guardians;  guardians  by  estoppel; 
guardians  of  insane  persons;  guardians  ad 
litem,  etc. 

Chapter  XII. 

RIGHTS,  DUTIES,  AND  LIABILITIES  OF 
GUARDIANS:  Right  to  custody  and  serv- 
ices of  ward;  maintenance  of  ward;  change 
of  ward's  domicile;  management  of  ward's 
estate;  foreign  guardians;  inventory  and 
accounts;  compensation  of  guardian;  trans- 
actions between  guardian  and  ward,  etc 

Chapter   XIII. 

TERMINATION  OF  GUARDIANSHIP  — 
ENFORCING  GUARDIAN'S  LIABILI- 
TY:   Covering  the  subject  generally. 

PART  IV. 

INFANTS,    PERSONS    NON    COMPOTES 

MENTIS,  AND  ALIENS. 

Chapter   XIV. 

INFANTS:  Covering  contracts  of  infants,  in- 
cluding ratification  and  disaffirmance;  lia- 
bilities for  necessaries,  etc.;  capacity  to 
hold  office,  to  make  a  will,  and  as  witness- 
es; liability  for  torts  and  crimes;  infanta 
as  parties  to  actions,  etc. 

Chapter  XV. 
PERSONS  NON  COMPOTES  MENTIS 
AND  ALIENS:  Covering  insane  and 
drunken  persons,  their  contracts,  their  lia- 
bility for  torts  and  crimes  and  testament- 
ary capacity,  etc. 

PART  V. 

MASTER  AND  SERVANT. 
Chapter   XVI. 
CREATION  AND  TERMINATION  OF  RE- 
LATION:    Remedies    for    breach    of    eon- 
tract;    rights  and  duties  and  liabilities  inter 
se  and  as  to  third  persons,  etc 


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TABLE  OF  CONTENTS. 


Part  I.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

Chapter   I. 

DEFINITIONS  AND  DIVISION  OP  SUBJECT:  Ex- 
ecutor* and  administrators  defined;  analysis  of 
book. 

Part  II.— APPOINTMENT  AND  QUALIFICATIONS. 

Chapter   II. 

APPOINTMENT  IN  COURT:  Necessity  of  adminis- 
tration; necessity  of  appointment  by  court;  ju- 
risdiction; conclusiveness  of  decrees  of  probate 
courts,  etc 

Chapter  IH. 

PLACE  AND  TIME  OP  APPOINTMENT  AND  REQ- 
UISITES THEREFOR:  Place  of  appointment; 
property  necessary  to  give  Jurisdiction;  time  limit 
lac  application. 

Chapter  IV. 

WHO  MAT  CLAIM  APPOINTMENT  AS  EXECU- 
TOR: Designation  In  will;  appointment  by  dele- 
gation; executor  of  executor;  non-assignabillty 
of  office. 

Chapter  V. 

WHO  MAT  CLAIM  THE  RIOHT  TO  ADMINISTER: 
Principle  which  governs  the  right;  order  of  pre- 
cedence; creditors;  preferences  among  kindred 
etc 

Chapter  VL 

DISQUALIFICATIONS  FOR  THE  OFFICE  OF  EX- 
ECUTOR OR  ADMINISTRATOR:  Infants,  mar- 
ried women,  idiots,  lunatics,  convicts,  corpora- 
tions; poverty  and  Insolvency;  absolute  and  dis- 
cretionary Incompetency,  etc 

Chapter  VII. 

ACCEPTANCE  OR  RENUNCIATION:  Express  or 
implied  renunciation. 

Chapter  VIII. 

PROCEEDINGS  FOR  APPOINTMENT  OF  EXECU- 
TORS AND  ADMINISTRATORS:     In  general. 

Chapter  IX. 

■PECIAL  KINDS  OF  ADMINISTRATIONS:  Admin- 
istration cum  testamento  annexo;  de  bonis  non; 
during  minority;  pendente  lite;  public  adminis- 
trator;   executor  de  son  tort,  etc 

Chapter  X. 

FOREIGN  AND  INTERSTATE  ADMINISTRATION: 
Validity  of  foreign  wills;  territorial  limit  of  va- 
lidity of  letters;  principal  and  ancillary  adminis- 
tration;   conflict  of  laws;    comity,  etc 

Chapter  XI. 

JOINT  EXECUTORS  AND  ADMINISTRATORS:  Na- 
ture of  estate;  rights,  powers  and  liabilities;  rem- 
edies between,  etc 

Chapter  *TT. 

ADMINISTRATION  BONDS:  Covering  the  subject 
generally. 


Part  III.— POWERS  AND  DUTIES. 

Chapter  XIII. 

INVENTORT— APPRAISEMENT— NOTICE  OF  AP- 
POINTMENT:   Covering  the   subject  generally. 

Chapter  XIV. 

ASSETS  OF  THE  ESTATE:  What  are  assets;  fix- 
tures; emblements;  animals;  ownership  at  time  of 
death,   etc 

Chapter  XV. 

MANAGEMENT  OF  THE  ESTATE:  Rights  and  lia- 
bilities of  executors  or  administrators;  collection 
and  Investment  of  assets,  taxation,  etc 

Chapter  XVL 

SALES  AND  CONVETANCES  OF  PERSONAL  OR 
REAL  ASSETS:  Covering  sales  In  general,  sales 
of  land  to  pay  debts,  power  to  mortgage,  etc 

Chapter  XVIX 

PATMENT  OF  DEBTS  AND  ALLOWANCES— IN- 
SOLVENT ESTATES:  Covering  priority  of  debts, 
widow's  allowance,  expenses  of  funeral  and  last 
illness,  costs  of  administration ;  presentation  and 
allowance  of  claims,  insolvent  estates,  etc 

Chapter  XVIII. 

PATMENT  OF  LEGACIES:  Legacies  subordinate  t» 
debts;  ademption  and  abatement  of  legacies; 
priority  between  legacies  and  contingent,  future 
or  unknown  debts;  payment  of  legacies.  Interest, 
etc 

Chapter  XIX. 

DISTRIBUTION  OF  INTESTATE  ESTATES:  Order, 
time  and  mode  of  distribution;  rights  of  husband, 
widow  and  next  of  kin,  right  of  presentation, 
payment  of  distributive   share,  etc 

Chapter  XX. 

ADMINISTRATION  ACCOUNTS:  Time  and  manner 
of  accounting,  charges  and  allowances  In  account; 
commissions  and  compensation,  etc. 

Part  IV.— TERMINATION  OF  OFFICE. 

Chapter  XXI. 

REVOCATION  OF  LETTERS— REMOVAL— RESIG- 
NATION:   Covering  the  subject  generally. 

Part  V.— REMEDIES. 

Chapter  XXIX 

ACTIONS  BT  EXECUTORS  AND  ADMINISTRA- 
TORS: Power  to  sue  before  probate  or  grant  of 
letters;  survival  of  actions;  actions  in  personal 
and  representative  capacity,  etc 

Chapter  XXI1X 

ACTIONS  AGAINST  EXECUTORS  AND  ADMIN- 
ISTRATORS: Survival  of  actions;  particular  lia- 
bilities; attachment  and  garnishment;  judgments, 
executions  and  other  proceedings;  order  of  liabil- 
ity of  assets;  suits  on  bonds,  etc 

Chapter  XXIV. 

STATUTE  OF  LIMITATIONS— SET-OFF:  General 
and  special  statute  of  limitations,  set-off,  eta. 

Chapter  XXV. 

EVIDENCE  AND  COSTS:  Covering  the  subject 
generally. 


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Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 


TABLE  OF  CONTENTS. 


Chapter  I. 

OP  THE  NATURE  OP  A  CORPORATION: 
Definition  and  creation;  limited  powers;  attri- 
butes and  incidents;  corporation  as  a  person, 
citizen,  etc. ;  kinds  of  corporations,  etc. 

Chapter  II. 

CREATION  AND  CITIZENSHIP  OP  CORPO- 
RATIONS: Covering  the  subject  generally,  in- 
cluding power  to  create;  general  and  special 
laws;  ratification  of  claim  to  corporate  exist- 
ence ;  agreement  between  corporation  and  state 
— acceptance  of  charter;  agreement  between 
corporators  and  corporation ;  purpose  of  incorpo- 
ration ;  corporate  name,  residence,  and  citizen- 
ship of  corporation;  extension  of  charter;  proof 
of  corporate  existence,  etc. 

Chapter  III. 

EFFECT  OP  IRREGULAR  INCORPORATION: 
Corporations  de  facto;  estoppel  to  deny  corpo- 
rate existence ;  liability  of  stockholders  as  part- 
ners. 

Chapter  IV. 

RELATION  BETWEEN  CORPORATION  AND 
ITS  PROMOTER  8 :  Liability  for  expenses  and 
services  of  promoters;  liability  on  contract  by 
promoters;  liability  of  promoters  to  corporation 
and  stockholders,  etc. 

Chapter  V. 

POWERS  AND  LIABILITIES  OP  CORPORA- 
TIONS: Express  and  implied  powers;  con- 
struction of  charter;  power  to  hold  realty ;  con- 
tracts and  conveyances,  etc. 

Chapter  VI. 

POWERS  AND  LIABILITIES  OP  CORPORA- 
TIONS (Continued) :    The  doctrine  of  ultra  vires. 

Chapter  VII. 

POWERS  AND  LIABILITIES  OP  CORPORA- 
TIONS (Continued):  Responsibility  for  torts 
and  crimes ;  contempt  of  court, 

Chapter  VIII. 

THE  CORPORATION  AND  THE  STATE: 
Charter  as  a  contract ;  police  power  of  the  state ; 
power  of  eminent  domain;  repeal  and  amend- 
ment of  charter;  taxation  of  corporation. 


Chapter  IX. 

DISSOLUTION  OF  CORPORATIONS:  How  ef- 
fected; equity  jurisdiction;  effect  of  dissolu- 
tion, etc 

Chapter  X. 

MEMBERSHIP  IN  CORPORATIONS:  Capital 
stock  and  capital;  nature  of  corporate  shares; 
certificates  of  stock;  subscriptions  to  stock;  re- 
lease and  discharge  of  subscriber,  etc.,  covering 
the  subject  generally. 

Chapter  XI. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :  Right  to  inspect  books  and  papers;  right 
to  vote;  profits  and  dividends;  increase  of  cap- 
ital; preferred  stock ;  watered  and  bonus  stock; 
action  by  stockholders  for  injuries  to  corpora- 
tion ;  expulsion  of  members,  etc. 

Chapter  XII. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :     Covering  transfer  of  shares. 

Chapter  XIII. 

MANAGEMENT  OP  CORPORATIONS— OFFI- 
CERS AND  AGENTS:  Powers  of  majority  of 
stockholders;  by-laws;  stockholders'  meetings; 
election  and  appointment  of  officers  and  agents: 
powers  and  liabilities  of  officers  and  agents;  re- 
moval of  officers  and  agents,  etc,  covering  the 
subject  generally. 

Chapter  XIV. 

RIGHTS  AND  REMEDIES  OF  CREDITORS: 
Relation  between  creditors  and  the  corporation, 
covering,  inter  alia,  property  subject  to  execu- 
tion ;  assets  as  a  trust  fund  for  creditors;  fraud- 
ulent conveyances;  assignment  for  benefit  of 
creditors;  preferences;  dissolution,  injunction, 
and  receivers;  relation  between  creditors  and 
stockholders,  covering,  inter  alia,  statutory  lia- 
bility of  stockholders;  contribution  between 
stockholders,  etc. ;  relation  between  creditors 
and  officers,  covering  preferences  to  officers  who 
are  creditors ;  statutory  liability  of  officers. 

Chapter  XV. 

FOREIGN  CORPORATIONS:  Covering  the  sub- 
ject generally. 

APPENDIX. 
The  logical  conception  of  a  corporation. 


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TABLE  OF  CONTENTS. 


Chapter   I. 

DEFINITION  AND  ESTABLISHMENT  OF 
RELATION:  What  constitutes  a  partner- 
ship; tests  of  intention;  sharing  profits;  pro- 
moters of  corporations;  defective  corpora- 
tion; delectus  personarum;  subpartnerships; 
holding  out,  etc. 

Chapter  H. 
KINDS  OF  PARTNERSHIPS  AND  PART- 
NERS: Classification  of  partnerships  and 
partners;  universal,  general,  and  special  part- 
nerships; limited  partnerships;  joint-stock 
companies;  mining  partnerships;  trading 
and  nontrading  partnerships,  etc. 

Chapter  HI. 

CHARACTERISTIC  FEATURES         OF 

PARTNERSHIPS:  Legal  and  mercantile 
view  of  a  firm;  partnership  name;  partner- 
ship property;  partnership  capital;  shares  in 
partnerships,  etc. 

Chapter  IV. 

IMPLIED  RIGHTS  AND  LIABILITIES  IN- 
TER SE:  Participation  in  management; 
rights  and  powers  of  majority;  duty  to  ex- 
ercise care,  skill,  and  good  faith;  right  to 
compete  with  firm;  compensation  for  serv- 
ices; interest  on  balances;  partner's  lien; 
division  of  profits,  etc. 

Chapter  V. 

ARTICLES  OF  PARTNERSHIP:  Purpose 
and  effect;  rules  of  construction;  usual 
clauses  in  articles,  etc.;  covering  the  subject 
generally. 

Chapter  VI. 

RIGHTS  AND  LIABILITIES  AS  TO 
THIRD  PERSONS:  Express  and  implied 
authority  of  partner  to  bind  firm;  particu- 
lar powers;  liability  of  partners  to  third 
persons;  incoming  partners;  assumption  of 
debts;  rights  in  firm  and  separate  property. 
etc 


Chapter  VII. 

ACTIONS  BETWEEN  PARTNERS:  Action 
on  partnership  claim  or  liability,  at  law,  in 
equity,  or  under  the  code;  actions  between 
firms  with  a  common  member;  actions  on 
individual  obligations;  equitable  actions  in 
general;  accounting  and  dissolution;  spe- 
cific performance;   injunction;   receivers,  etc. 


Chapter   VIII. 

ACTIONS  BETWEEN  PARTNERS  AND 
THIRD  PERSONS:  Parties  in  actions 
by  and  against  partners;  effect  of  changes 
in  firm;  disqualification  of  one  partner  to 
sue;    action  in  firm  name,  etc 


Chapter   IX. 

DISSOLUTION:  Causes  of  dissolution;  part- 
nerships for  a  definite  and  indefinite  time; 
causes  subject  to  stipulation;  causes  not  sub- 
ject to  stipulation;  causes  for  which  a  court 
will  decree  a  dissolution;  consequences  of 
dissolution  as  to  third  persons  and  as  to 
partners. 

Chapter   X. 

LIMITED  PARTNERSHIPS:  Covering  the 
subject  exhaustively,  including,  inter  alia, 
definition  and  establishment  of  relation; 
general  and  special  members;  certificate; 
contribution  of  general  and  special  partners; 
name;  sign;  rights  and  liabilities;  with- 
drawal, alteration,  and  interference;  insol- 
vency; termination  of  relation;  change  from 
limited  to  general  liability;    actions,  etc 


Chapter    XL 

JOINT-STOCK  COMPANIES:  Definition  and 
nature;  transfer  of  shares;  powers  of  mem- 
bers and  officers;  rights  and  liabilities;  ac- 
tions, etc. 


i  Volume,  616  pages.     $3.75,  net,  delivered. 


West  Publishing  Co.,  St.  Paul,  Minn. 

C1471  (20) 


(3n  tfe  JJornBooft  ^criee.) 


Qt  §anb6oo8  of 


d5<)uifg  (pfeabincj* 


Author  of   "  Shipman's  Common- Law  Pleading.1 


TABLE    OF    CONTENTS. 


Chapter    I. 

BQUTTT  PLEADING  IN  GENERAL:  Cov- 
ering nature  and  scope  of  pleadings  in  eq- 
uity. 

Chapter  H. 

PARTIES:  Giving  general  rules,  and  covering 
classification  of  parties  as  necessary,  proper 
but  not  indispensable,  formal,  and  parties 
with  separable  interests;  parties  complain- 
ant and  respondent;  joinder,  etc 

Chapter  HI. 

PROCEEDINGS  IN  AN  EQUITABLE 
SUIT:  Indicating  the  steps  usually  taken 
and  the  method  of  procedure,  as  the  bill, 
appearance,  proceedings  on  default;  the 
modes  of  defense,  by  disclaimer,  demurrer, 
plea,  or  answer;  the  replication;  interlocu- 
tory proceedings,  as  amendment,  injunc- 
tions, production  of  documents,  interven- 
tion; the  evidence,  hearing,  and  decree;  the 
correction,  reversal,  or  enforcement  of  de- 
crees, etc 


Chapter  IV. 

BILLS  IN  EQUITY:  Covering  definition  and 
classification,  and  discussing  original  bills, 
and  bills  not  original,  with  a  summary  of 
the  general  rules  covering  the  bill,  etc 

Chapter  V. 

THE  DISCLAIMER:    Definition,   nature,  and 

use. 

Chapter  VL 
DEMURRER:    Definition;  form  of  demurrer, 

and  grounds  therefor;    orders  sustaining  or 

overruling  demurrer,  etc 

Chapter  VTL 
THE  PLEA:    Definition,  nature,  and  office  of 
pleas,  grounds  for  pleas,  their  form,  support- 
ing answers,  etc. 

Chapter  VJXL. 

THE  ANSWER:  Nature  and  office,  substance 
and  effect,  of  the  answer,  and  the  character- 
istics thereof. 

Chapter  IX. 

THE  REPLICATION. 


644  PAGES.     $3.75,  NET,  DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


C1630 


(21) 


(Zfc  5)orn6o©8  ^erico.) 


Z$t  £an>  of  <Bvti>tnu+ 

(gg  3ogn  2(4g  (gfc(gefeeg,  @,.  (31.,  &&.  (f ., 

Author  of  "Common- Law  Pleading,"  etc 


TABLE    OF    CONTENTS. 


CHAPTER   I. 

INTRODUCTORY:     Definitions;     origin,   place 

and  function  of  the  law  of  evidence,  etc. 

CHAPTER  II. 
JUDICIAL  NOTICE:    The  doctrine  in  general; 
facts  which  may  or  must  be  noticed. 

CHAPTER   III. 

QUESTIONS  OF  LAW  AND  QUESTIONS 
OF  FACT:  Definitions;  province  of  court 
and  jury. 

CHAPTER  IV. 

BURDEN  OF  PROOF:  Burden  of  proof  never 
Bhifts;  burden  of  proceeding  may  shift;  ver- 
dict, etc. 

CHAPTER  V. 

PRESUMPTIONS:  Presumptions  as  rules  of 
law;  prima  facie,  conclusive,  spurious,  and 
conflicting  presumptions. 

CHAPTER  VI. 

ADMISSIONS:  Direct  and  indirect  admissions; 
admissibility;  civil  and  criminal  cases;  ef- 
fect of  admission,  etc. 

CHAPTER   VII. 
CONFESSIONS:    Defined;    voluntary  or  under 
influence;   may  be  explained;  evidence  there- 
from, etc. 

CHAPTER   VIII. 

MATTERS  EXCLUDED  AS  UNIMPOR- 
TANT, OR  AS  MISLEADING,  THOUGH 
LOGICALLY  RELEVANT:  Logical  and  le- 
gal relevancy,  rule  excluding;  classification 
of  matter;  proof  of  diverse  matters  consid- 
ered. 


CHAPTER  IX. 
CHARACTER:    General  rule;    when  material; 
how  proved,  etc. 

CHAPTER   X. 

OPINION  EVIDENCE:  Matter  of  opinion  dis- 
tinguished from  matter  of  fact;  general  rule; 
exceptions;  matters  forming  subject  of  ex- 
pert opinion,  etc. 

CHAPTER  XL 

HEARSAY:  General  rule;  exceptions;  real 
and  apparent;  classes  of  statements  admit- 
ted because  of  the  difficulty  of  other  proof. 

CHAPTER   XII. 

WITNESSES:  Rules  excluding  witnesses;  per- 
sons excluded;  privilege  distinguished  from 
disqualification;    privileged   persons. 

CHAPTER   XIII. 

EXAMINATION  OF  WITNESSES:  Ordinary 
method;  refreshing  memory;  direct  and 
cross  examination;  leading  questions;  im- 
peaching witness,  etc. 

CHAPTER   XIV. 

WRITINGS:  B*st  evidence  rule;  production  of 
documents;  authentication  of  documents; 
proof  of  handwriting;  evidence  affecting  the 
contents  of  documents,  etc. 

CHAPTER  XV. 

DEMURRERS  TO  EVIDENCE:  Definition; 
when  joinder  compelled;  final  form,  etc 


1  vol.    480  pages.    $3.75,  net,  delivered. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 

C1887  (22) 


(£#e  JE)orn8oo£  ikctito.) 


($  §)Anfc0ooft  of 

€§t  Saw  of  (Jle^ficjettce^ 


TABLE   OF  CONTENTS. 


Chapter  I. 

DEFINITION  AND  ESSENTIAL  ELE- 
MENTS :  Considering  also  proximate 
cause ;  efficient,  intervening,  or  co-operating 
cause,  etc 

Chapter   IT. 

CONTRIBUTORY  NEGLIGENCE:  Defini- 
tion and  general  rule  ;  degree  of  care  ;  as- 
sumption of  risk  and  legal  status  of  plain- 
tiff ;  plaintiff's  negligence ;  negligence  of 
third  persons ;  imputed  negligence ;  phys- 
ical condition  as  an  element ;  evidence, 
pleading,  and  questions  of  fact. 

Chapter   III. 

LIABILITY  OF  MASTER  TO  SERVANT: 
Duty  of  master,  as  to  appliances,  selecting 
servants,  rules,  etc. ;  limitation  of  master's 
duty ;  ordinary  risks,  known  dangers,  fel- 
low servants  ;  concurrent  and  contributory 
negligence. 

Chapter   IV. 

LIABILITY  OF  MASTER  TO  THIRD  PER- 
SONS :  Relationship ;  independent  con- 
tractor; willful  torts  of  servants,  and  inde- 
pendent torts. 

Chapter  V. 

COMMON  CARRIERS  OF  PASSENGERS: 
The  relation  of  passenger  and  carrier ;  ter- 
mination of  relation;  who  are  passengers; 
the  contract,  ticket,  compensation,  etc 

Chapter   VI. 

CARRIERS  OF  GOODS  :  Definition  ;  liabili- 
ty for  loss  or  damage ;  liability  for  delay ; 
contracts  limiting  liability  in  special  states; 
limiting  time  and  manner  of  making  claims ; 
construction  of  limiting  contracts ;  actual 
notice ;  special  classes  of  goods,  as  live 
stock  and  baggage ;  beginning  and  termina- 
tion of  liability ;    excuses  for  nondelivery. 


Chapter   VEL 

OCCUPATION  AND  USE  OF  LAND  AND 
WATER:  Duties,— general  rule;  lateral 
support ;  dangerous  premises  ;  landlord  and 
tenant,  and  condition  of  rented  premises ; 
water  courses  ;  dams ;  obstruction  of  navi- 
gable streams,  etc. 

Chapter   VIII. 

DANGEROUS  INSTRUMENTALITIES : 

Railroads  ;  degree  of  care  exacted  ;  signals  ; 
care  required  of  persons;  collisions  with 
persons  and  with  animals ;  fires ;  inten- 
tional, accidental,  and  railroad  fires;  ani- 
mals ;  communicating  disease  ;  firearms,  ex- 
plosives, poisons,  etc 

Chapter   IX. 

NEGLIGENCE  OF  ATTORNEYS,  PHYSI- 
CIANS, AND  PUBLIC  OFFICERS: 
Negligence  of  attorneys ;  damage  essential 
to  liability  ;  negligence  of  physicians  ;  bur- 
den of  proof,  evidence,  pleading,  etc. ;  negli- 
gence of  public  and  governmental  officers, 
ministerial  officers,  sheriffs  and  constables, 
notaries  public,  clerks  of  court,  and  registers 
of  deeds. 

Chapter   X. 

DEATH  BY  WRONGFUL  ACT  :  Right  of  ac- 
tion ;  instantaneous  death,  proximate  cause 
of  death,  beneficiaries ;  damages ;  pleading 
and  evidence ;  limitation  of  commencement 
of  action. 

Chapter   XI. 

NEGLIGENCE  OF  MUNICIPAL  CORPO- 
RATIONS :  Public  and  private  corpora- 
tions ;  right  of  action ;  liability  for  inju- 
ries;  alteration  of  grades;  acts  of  officers 
or  agents;  acts  ultra  vires;  judicial  or  leg- 
islative duties;  conflagrations  and  destruc- 
tion by  mobs  ;  public  health  and  sanitation  ; 
quasi  municipal  corporations. 


1  VOL.     634  PAGES.     S3.75,  DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


C278S-1 


(23) 


(t(5e  JgornBooft  Series.) 


(gg  3<xm<&  <W.  Cafon, 


Editor  3d  Edition  Collier  on  Bankruptcy,  Co-Editor  American  Bankruptcy  Reports, 
Eaton  and  Greene's  Negotiable  Instruments  Law,  etc. 


TABLE  OF  CONTENTS. 


ORIGIN  AND  HISTORY:  Showing  distinc- 
tion between  law  and  equity,  equity  juris- 
diction in  the  United  States,  etc 

GENERAL  PRINCIPLES  GOVERNING 
THE  EXERCISE  OF  EQUITY  JURIS- 
DICTION: Covering  adequate  remedy  at 
law,  multiplicity  of  suits,  etc. 

MAXIMS:  With  a  separate  discussion  of 
each. 

PENALTIES  AND  FORFEITURES:  Cov- 
ering rules  governing  the  determination  as 
to  liquidated  damages  or  penalty,  statutory 
penalties  and  forfeitures,  etc. 

PRIORITIES  AND  NOTICE:  Covering 
equal  and  superior  equities,  notice,  etc. 

BONA  FIDE  PURCHASERS  WITHOUT 
NOTICE:  The  doctrine  and  its  applica- 
tion. 

EQUITABLE  ESTOPPEL:  Essential  ele- 
ments, operation  of  estoppel,  etc. 

ELECTION:  The  doctrine  and  Its  applica- 
tion;   ascertainment  of  values,  etc. 

SATISFACTION    AND    PERFORMANCE: 

Satisfaction    of   debts,    of    legacies,    of    por- 
tions, etc.;    parol  or  extrinsic  evidence,  etc. 

CONVERSION  AND  RECONVERSION: 
The  doctrine;  effect  of  conversion;  total  or 
partial   failure  of  purposes. 

ACCIDENT  as  a  ground  of  equitable  relief. 

MISTAKE  as  a  ground  of  equitable  relief. 


FRAUD  as  a  ground  of  equitable  relief;    ac- 
tual and  constructive  fraud,  etc. 


EQUITABLE    PROPERTY: 
ally;   express  trusts,  etc. 


Trusts    gener- 
Resulting    and    con- 


IMPLIED    TRUSTS: 
stiuctive  trusts,  etc. 

POWERS,  DUTIES,  AND  LIABILITIES 
OF  TRUSTEES:  Acceptance;  breach  of 
trust;    accounts,  etc. 

MORTGAGES:  The  common-law  and  equi- 
table doctrines  as  to  mortgages  and  pledges. 

EQUITABLE  LIENS:  Arising  from  consid- 
erations of  justice,  from  charges  by  will  or 
deed,  etc. 

ASSIGNMENTS:  Of  choses  in  action,  pos- 
sibilities and  expectancies,  etc 

REMEDIES  SEEKING  PECUNIARY  RE- 
LIEF: Contribution,  exoneration,  defense, 
etc. 


SPECIFIC      PERFORMANCE: 

for  same,  defenses,  variance,  etc 


INJUNCTION: 

sion. 


Contracts 
Classification,    with    discus- 


PARTITION,  DOWER,  AND  ESTABLISH- 
MENT OF  BOUNDARIES:  Jurisdiction, 
procedure,  etc. 

REFORMATION,  CANCELLATION,  AND 
CLOUD  ON  TITLE:  Parties,  evidence, 
statute  of  frauds,  etc. 

ANCILLARY  REMEDIES:  Rules  respect- 
ing discovery,  examination  of  witnesses,  in- 
terpleader, receivers,  etc 


1  volume,  734  pages.     S3. 75  delivered. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 

C3661  (24) 


(£0e  jE)0™^00^  ^trieB.) 


(J    JE)attbBoo{£     °f 


®p  (goBerf  (BX.  3Eju#0,  QJt.  (&. 


TABLE  OF  CONTENTS. 


The  Origin  and  History  of  the  Admiralty,  and 
its  Extent  in  the  United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Sub- 
ject Matter. 

General  Average  and  Marine  Insurance. 

Bottomry    and    Respondentia ;     and    Liens    for 
Supplies,  Repairs,  and  Other  Necessaries. 

Stevedores'  Contracts,   Canal   Tolls,   and  Tow- 
age Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act 
of  February  13,  1S93. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries 
Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels.  Special  Circum- 
stances, and  General  Precautions. 

Damages  in  Collision  Cases. 

Vessel   Ownership   Independent  of  the   Limited 
Liability  Act. 


Rights  and  Liabilities  of  Owners  as  Affected  by 
the  Limited  Liability  Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes   Regulating   Navigation,    Including: 

(1)  The  International  Rules. 

(2)  The   Rules   for   Coast   and   Connecting 

Inland  Waters. 

(3)  The  Dividing  Lines  between   the  High 

Seas  and  Coast  Waters. 

(4)  The  Lake  Pules. 

(5)  The  Mississippi  Valley  Rule9. 

(6)  The  Act  of  March  3,   1899,  as  to  Ob- 

structing Channels. 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  26,  1S84. 

4.  Section  911,  Rev.  St.,  as  Amended.  Regulat- 

ing Bonding  of  Vessels. 

5.  Statutes  Regulating  Evidence  in  the  Federal 

Courts. 

0.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


I  volume,  503  Pages.     $3.75  delivered. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 

CS662  (25) 


C#e  J)orn6ooR  §&mt*. 


T 


HE    Albany   Law   Journal,  in  a  recent  review  of  one  of  the  volumes  of  the 
Hornbook   Series,  writes : 


"So  much  has  been  written  upon  the  merits  of  the  Hornbook  Series  that  anything  additional 
may  seem  superfluous;  yet  we  cannot  refrain  from  commenting,  in  passing,  upon  the  general  utility, 
merit,  and  scope  of  the  series.  *  *  *  The  series  is  of  untold  value  to  the  practicing  lawyer, 
enabling  him  to  find  and  refresh  his  mind  in  an  instant  upon  any  fundamental  principle  or  variation 
therefrom  of  which  he  may  be  in  doubt,  and  furnishing  an  ever-ready  and  convenient  digest  of  the 
law. " 

This  emphasizes  the  fact,  which  has  also  been  practically  recognized  by  the 
members  of  the  bar  who  have  examined  the  volumes  issued  under  this  name,  that, 
although  low  in  price,  they  are  not,  in  consequence,  cheap  books.  They  are  elemen- 
tary in  the  sense  that  they  deal  with  the  elementary  branches  of  law,  but  they  are 
not  bv  any  means  elementary  in  the  sense  that  they  fail  to  give  the  compre- 
hensive handling  which  the  practitioner,  as  distinguished  from  the  law  student,  re- 
quires. In  planning  the  style  and  character  of  this  series,  the  controlling  idea 
was  that  any  principle  of  law  could  be  stated  in  simple  and  intelligible  terms,  if  the 
man  who  made  the  statement  understood  the  principle,  and  knew  how  to  express 
himself.  It  was  to  some  extent  an  attack  upon  the  old  theory  that  a  certain  amount 
of  obscurity  in  a  legal  document  heightened  the  effect  of  learning.  It  was  main- 
tained, instead,  that  any  legal  principle  could  be  stated  in  simple  and  intelligible 
terms,  and  each  separate  branch  of  the  law,  if  carefully  studied  with  this  in  view, 
could  be  mapped  out  so  that  the  fundamental  principles  involved  could  be  shown  in 
an  orderly  sequence,  and  in  their  relation  to  each  other.  The  soundness  of  the 
theory  has  been  shown  by  the  success  of  the  Hornbook  Series.  The  several  vol- 
umes have  been  prepared  by  different  authors,  carefully  chosen  from  the  field 
of  legal  writers,  with  the  object  of  securing  thorough  and  expert  treatment  of  the 
particular  subject  assigned  in  each  instance.  The  method  of  presentation  was  at  first 
considered  a  novel  one,  but  has  now  become  so  well  known,  through  the  seventeen 
works  issued,  that  the  Albany  Law  Journal  could  refer  to  it  in  the  terms  quoted  at 
the  beginning  of  this  notice.  The  books  have  been  found  so  exact  in  statement,  so 
convenient  in  arrangement,  and  so  unmistakably  clear  in  style,  that  they  have  been 
adopted  as  the  basis  of  instruction  in  over  seventy  law  schools.  At  the  same  time, 
they  have  been  found  by  practitioners  to  be  exactly  the  kind  of  book  that  a  prac- 
titioner needs  to  have  on  his  desk  for  current  reference.  He  presumably  knows 
the  law,  yet  he  often  desires  to  refresh  his  memory  regarding  some  special  branch 
before  he  takes  up  a  case  involving  questions  relating  to  it,  and  for  that  purpose 
the  arrangement  of  black-letter  paragraphs  for  the  statement  of  principles  is  pecul- 
iarly convenient.  At  the  same  time,  the  exceptions  and  modifications  of  these 
principles  are  stated  in  a  different  type,  so  that  it  is  possible  for  him  to  go  into  de- 
tails of  any  question  when  he  desires  to  do  so.  The  authorities  are  grouped  in 
notes  at  the  foot  of  the  page,  and  their  completeness  is  evidenced  by  such  testi- 
mony as  the  following: 

"I  found  upon  page  58  of  this  small  volume  [Clark's  Criminal  Law],  in  a  small  compass,  a 
statement  of  the  divergent  views,  and  a  collation  of  the  authorities  pro  and  con  [on  a  certain  ques: 
tion],  all  contained  in  a  more  condensed  and  satisfactory  form  than  I  have  found  in  any  other 
treatise,"— Hon.  J.  M.  Dickinson,  Asst.  U.  S.  Atty.  Gen. 

" I  found  in  Clark's  Criminal  Procedure,  under  '  Jurisdiction,' authorities  regarding  the  ques- 
tion of  asportation,  for  which  I  had  on  a  previous  occasion  spent  months  of  patient  search.  Fetter 
on  Equity  has  also  already  paid  for  itself  many  times  over. " — U.  S.  G.  Pitzer,  Prosecuting  Attorney, 
Martinsburg,  W.  Va. 

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